Electronic Rulemaking in the Federal Government

October 16, 2007 –
May 16, 2008
RL34210

This report explores the Bush Administration's initiative of implementing electronic rulemaking (e-rulemaking) in the federal government, the questions regarding how this initiative is being funded, its overall structure, its costs and expected financial benefits, the functionality of some of the applications being used, and its effect on public participation in the rulemaking process.

Order Code RL34210
Electronic Rulemaking in the Federal Government
Updated May 16, 2008
Curtis W. Copeland
Specialist in American National Government
Government and Finance Division
Electronic Rulemaking in the Federal Government
Summary
Electronic rulemaking, or “e-rulemaking,” began in the federal government
within individual agencies in the mid- to late 1990s, but current government-wide
initiatives can be traced to both congressional and presidential sources. For example,
the E-Government Act of 2002 requires federal agencies, “to the extent practicable,”
to accept public comments on their rules electronically and to ensure that one or more
federal websites contains those comments and other materials normally maintained
in rulemaking dockets. E-rulemaking is also one of about two dozen e-government
initiatives launched as part of the George W. Bush Administration’s President’s
Management Agenda. In the first phase of the initiative, the Administration
established a website through which the public can identify all federal rules that are
open for comment and provide comments on those rules. The second phase involves
the creation of a government-wide docket system that can allow the public to review
rulemaking materials (e.g., agencies’ legal and cost-benefit analyses for their rules)
and the comments of others. The Environmental Protection Agency (EPA) is the
lead agency for the e-rulemaking initiative.
E-rulemaking has been described as a way to increase democratic legitimacy,
improve regulatory policy decisions, decrease administrative costs, and increase
regulatory compliance. However, the implementation of e-rulemaking in the federal
government has been controversial. Although the migration of agencies into the
government-wide docket was originally planned for 2004, that migration is currently
not expected to be completed until 2008. Congress has objected to how e-rulemaking
and several other e-government projects have been funded (through appropriations
transfers or reimbursements to the projects’ “managing partner” agencies), and has
voiced other concerns about the overall management and appropriateness of the
initiatives. Questions have also been raised regarding the e-rulemaking initiative’s
centralized structure, its costs (more than $53 million spent through FY2008) and
expected financial benefits, the functionality of some of the applications being used,
and its effect on public participation in the rulemaking process.
The reasons why the federal e-rulemaking initiative has had such a difficult first
five years are many, but one appears to be the lack of direct, consistent funding.
From FY2003 through FY2007, Congress appropriated less than $20 million to the
E-Government Fund for all e-government projects — much less than the $345
million authorized in the E-Government Act for that period. Congress has also
required approval by the Appropriations Committees before any transfers or
reimbursements of appropriations are made. Although some have suggested that
better communication is needed between Congress and the executive branch, the
recent conflicts may reflect basic differences of opinion between the two branches
regarding control of federal operations and how the branches should interact. A longterm issue is whether e-rulemaking should continue to be housed in EPA.
This report will be updated as appropriate to reflect changes in the e-rulemaking
initiative.
Contents
E-rulemaking Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Early Federal E-rulemaking Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Congressional Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Presidential Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
E-rulemaking Modules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Module 1: Regulations.gov . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Electronic Commenting Options Vary . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Module 2: Federal Docket Management System . . . . . . . . . . . . . . . . . . . . . 11
Daniels Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Change in Leadership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A Centralized Docket . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Implementation Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Performance Shortfalls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
E-rulemaking Implementation Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Funding Through Agency Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Agency Contributions to E-rulemaking . . . . . . . . . . . . . . . . . . . . . . . . 17
Flawed OMB Budget Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Congressional Opposition to Transfers . . . . . . . . . . . . . . . . . . . . . . . . 21
Legal Authority for Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Effect of Funding Difficulties on Implementation . . . . . . . . . . . . . . . . 30
Structure of the Government-wide Docket . . . . . . . . . . . . . . . . . . . . . . . . . 30
Effect on Presidential Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Expected Financial Costs and Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Cost Estimates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Benefits Estimates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
More Recent Efforts to Show Cost Savings . . . . . . . . . . . . . . . . . . . . 35
Functionality of Regulations.gov . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Navigability — 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Consistency and Completeness of Data . . . . . . . . . . . . . . . . . . . . . . . . 39
Search Capabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Loss of Certain Capabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Effects on Public Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Legislative-Executive Branch Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Long-Term Location of E-Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
List of Tables
Table 1. Agency Contributions to E-rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . 19
Electronic Rulemaking in the
Federal Government
Electronic rulemaking, or “e-rulemaking,” is the term used to describe the use
of information technology (IT) to facilitate a range of activities related to the process
of developing regulations. Although e-rulemaking in the federal government began
primarily within individual agencies, the current government-wide initiative is more
centralized and can be traced to both congressional and presidential sources. The EGovernment Act of 2002 (P.L. 107-347) requires federal agencies, “to the extent
practicable,” to accept public comments on their rules electronically and to ensure
that one or more federal websites contains those comments and other materials
normally maintained in rulemaking dockets.1 E-rulemaking is also one of about two
dozen e-government projects launched as part of the George W. Bush
Administration’s President’s Management Agenda.2 Initially, the Administration
established a website in January 2003 through which the public could identify federal
rules that are open for comment, and provide comments on those rules. The second
phase of the Administration’s initiative is currently underway, and is intended to
allow the public to access and review agency rulemaking materials (e.g., agencies’
legal and cost-benefit analyses for their rules) and the comments of others more
easily.
In concept, e-rulemaking has been described as a way to increase democratic
legitimacy, improve regulatory policy decisions, decrease administrative costs, and
increase regulatory compliance.3 However, the implementation of e-rulemaking in
the federal government has been controversial, with questions being raised regarding
how the Administration’s initiative is being funded, its overall structure, its costs and
expected financial benefits, the functionality of some of the applications being used,
and its effect on public participation in the rulemaking process. This report will
1
For more on the E-Government Act, see CRS Report RL30795, General Management
Laws: A Compendium, coordinated by Clinton T. Brass. A “docket” serves as the repository
for documents or information related to an agency’s rulemaking and other activities, and
typically contain legal or economic analyses that the agency has prepared and the comments
submitted by the public.
2
The President’s Management Agenda (PMA), announced in August 2001, is composed of
five government-wide initiatives: strategic management of human capital, competitive
sourcing, improved financial performance, budget and performance integration, and
expanded electronic government. For more on the PMA, see CRS Report RS21416, The
President’s Management Agenda: A Brief Introduction, by Virginia A. McMurtry.
3
See, for example, Cary Coglianese, E-Rulemaking: Information Technology and
Regulatory Policy, Regulatory Policy Program, John F. Kennedy School of Government,
Harvard University, 2004, pp. v-vi.
CRS-2
explore each of those issues, but begins with information on rulemaking in general
and the federal e-rulemaking initiative in particular.
E-rulemaking Initiatives
Federal regulation, like taxing and spending, is one of the basic tools of
government used to implement public policy. Regulations generally start with an act
of Congress, and are the means by which statutes are implemented and specific
requirements are established. The development and framing of a rule has been
described as “the climactic act of the policy making process.”4 Another observer
described the rulemaking process as “absolutely central to the definition and
implementation of public policy in the United States,” and said that “no significant
attempt to alter the direction of a public program can succeed without effective
management of the rulemaking process.”5 Federal agencies issue more than 4,000
final rules each year on topics ranging from the timing of bridge openings to the
permissible levels of arsenic and other contaminants in drinking water.
The public can play a role in the rules that affect them through notice and
comment provisions in the Administrative Procedure Act (APA) of 1946, as
amended (5 U.S.C. § 551 et seq.). The APA generally requires agencies to (1) publish
a notice of proposed rulemaking in the Federal Register; (2) allow interested persons
an opportunity to participate in the rulemaking process by providing “written data,
views, or arguments”; and (3) publish the final rule 30 days before it becomes
effective.6 However, in order to be involved in rulemaking most effectively, the
public must be able to (1) know that proposed rules are open for public comment and
(2) prepare and submit comments to relevant decisionmakers, and (3) should be
allowed to access regulatory supporting materials (e.g., agencies’ legal and economic
analyses) and the comments of others so that their comments can be more informed
and useful to decisionmakers.
IT has the potential to enhance the public’s ability to perform all three of these
tasks. As one author said, “information technology could make it easier for agencies
to give notice to interested people and allow those people to access and search the
proposed rule, could allow for more interactive and collaborative communications
from individuals during the rulemaking process, and could make it easier for people
and entities to monitor the implementation and enhance the enforcement of rules.”7
4
Colin Diver, “Regulatory Precision,” in Keith Hawkins and John Thomas, eds., Making
Regulatory Policy (Pittsburgh: University of Pittsburgh Press, 1989), p. 199.
5
Cornelius M. Kerwin, Rulemaking: How Government Agencies Write Law and Make
Public Policy, 2nd ed., (Washington: CQ Press, 1999), p. ix.
6
For more on the APA and other rulemaking requirements, see CRS Report RL32240, The
Federal Rulemaking Process: An Overview, by Curtis W. Copeland. For an in-depth
discussion of the federal rulemaking process, see Jeffrey S. Lubbers, A Guide to Federal
Agency Rulemaking: Fourth Edition (Chicago: American Bar Association, 2006).
7
Stuart M. Benjamin, “Evaluating E-Rulemaking: Public Participation and Political
(continued...)
CRS-3
However, in part because federal IT investments are not always well designed and
implemented,8 the application of IT to the rulemaking process does not automatically
guarantee success.
Early Federal E-rulemaking Initiatives
E-rulemaking in the federal government began with both government-wide and
agency-specific initiatives in the 1990s. In 1994, the Office of the Federal Register
made the Federal Register and the Code of Federal Regulations available online.
Also, individual federal agencies began experimenting with electronic rulemaking
in the mid-1990s, with some allowing the public to comment on their rules
electronically.9 In 1998, the Department of Transportation (DOT) took a major step
forward and established the first electronic rulemaking docket in the federal
government. Compliant with National Archives and Records Administration
(NARA) requirements for record systems, DOT’s Docket Management System
(DMS) allowed the department to eliminate its paper regulatory docket room and has
reportedly saved more than $1 million per year in reduced administrative costs.10
Although DOT’s DMS was generally recognized as the most comprehensive and
ambitious e-rulemaking system at the time, other agencies also began implementing
their own electronic systems.
In June 2000, the General Accounting Office (GAO, now the Government
Accountability Office) reported on efforts to allow the public to participate
electronically in the rulemaking process in five federal agencies: DOT; the
Departments of Agriculture (USDA), Health and Human Services (HHS), and Labor
(DOL); and the Environmental Protection Agency (EPA).11 All five of the agencies
had websites that conveyed rulemaking information to the public and/or maintained
some rulemaking records in electronic form, but there were differences between and
sometimes within the agencies regarding the types of services provided. Individuals
and organizations outside of the federal government suggested greater use of certain
practices (e.g., proactive regulatory notification systems), and some suggested that
agencies move to a more consistent organization, content, and presentation of
7
(...continued)
Institutions,” Duke Law Journal, vol. 55, no. 6 (March 2006), p. 899.
8
U.S. Government Accountability Office, Information Technology: Further Improvements
Needed to Identify and Oversee Poorly Planned and Performing Projects, GAO-07-1211T,
September 20, 2007.
9
Some agencies went even further than allowing electronic comments. For example, in
1996, the Nuclear Regulatory Commission reportedly experimented with “electronic
dialogues” on proposed changes to fire protection rules for nuclear reactors. See Michele
Ferenz and Colin Rule, “RuleNet: An Experiment in Online Consensus Building,” in
Lawrence Susskind, Sarah McKearnan and Jennifer Thomas-Larmer eds., The Consensus
Building Handbook: A Comprehensive Guide to Reaching Agreement (Thousand Oaks, CA:
Sage Publications, Inc., 1999), pp. 879-898.
10
U.S. General Accounting Office, Federal Rulemaking: Agencies’ Use of Information
Technology to Facilitate Public Participation, GAO/GGD-00-135R, June 30, 2000, p. 9.
11
Ibid.
CRS-4
information to allow for a more common “look and feel” to agencies’ e-rulemaking
efforts. However, representatives of the agencies did not believe that cross-agency
standardization was either necessary or appropriate, and said that each agency should
be allowed to develop systems to meet its own particular circumstances.
In February 2001, GAO reported that federal and state agencies were also
making extensive use of IT to address other aspects of regulatory management.12 For
example, DOL had a system of electronic “advisors” imitating the interaction that an
individual might have with an employment law expert, and EPA was working with
partners in state government to develop a national environmental information
exchange network. Several of the state innovations included interactive systems that
allowed regulated entities to identify their regulatory responsibilities and complete
related transactions. Representatives from non-governmental organizations
suggested that federal agencies improve both the content and access to on-line
information, more broadly and consistently use some existing applications, and adopt
some new applications. Factors that reportedly facilitated or hindered the adoption
and diffusion of such applications were (1) top-level leadership commitment and
support, (2) adequate financial resources and staffing, (3) legislative and executive
branch IT initiatives, (4) internal and external partnerships with critical stakeholders,
(5) reengineering of existing business processes, and (6) development of an effective
communication infrastructure.
Congressional Initiatives
Congress was an early advocate of the use of IT in administrative processes. For
example, in 1998, Congress enacted the Government Paperwork Elimination Act
(GPEA) (44 U.S.C. § 3504 note), which required that, by October 21, 2003, federal
agencies provide the public, when practicable, with the option of submitting,
maintaining, and disclosing information electronically, instead of on paper. GPEA
made the Office of Management and Budget (OMB) responsible for ensuring that
federal agencies met the act’s implementation deadline. Although GPEA did not
specifically mention rulemaking, both OMB and rulemaking agencies told GAO that
the act’s requirements provided an impetus for developing IT-based approaches to
rulemaking and, more generally, to regulatory management.13
Congress has also prompted the use of IT in rulemaking specifically. For
example, Section 206(c) of the E-Government Act of 2002 requires agencies to
accept rulemaking comments under Section 553(c) of the APA electronically “to the
extent practicable.” Section 206(d) of the Act requires agencies, in consultation with
the OMB Director and to the extent practicable, to (1) “ensure that a publicly
accessible Federal Government Web site contains electronic dockets for rulemakings
under section 553”; and (2) make available in those dockets all submissions under
the APA, and all other materials that are usually included in such dockets, even if not
submitted electronically. Notably, the commenting and docket requirements are
12
U.S. General Accounting Office, Regulatory Management: Communication About
Technology-Based Innovations Can Be Improved, GAO-01-232 (February 12, 2001).
13
U.S. General Accounting Office, Regulatory Management: Communication About
Technology-Based Innovations Can Be Improved, p. 27.
CRS-5
placed on agencies, not OMB, and could be could be satisfied with agency-specific
systems, a government-wide system, or something in between. Section 206(e) of the
Act does, however, state that agencies are to implement the requirements of the
section “consistent with a timetable established by the [OMB] Director.”
Section 101 of the E-Government Act (which added a new Chapter 36 to Title
44 of the United States Code) created an Office of Electronic Government within
OMB, headed by an administrator appointed by the President. That section of the
Act also established an “E-Government Fund” that was to be:
administered by the Administrator of the General Services Administration to
support projects approved by the Director, assisted by the Administrator of the
Office of Electronic Government, that enable the Federal Government to expand
its ability, through the development and implementation of innovative uses of the
Internet or other electronic methods, to conduct activities electronically.
The Act stipulated that no transfers of funds from the E-Government Fund to federal
agencies may be made until 15 days after a proposed spending plan and justification
for each project to be undertaken using such monies has been submitted to the House
and Senate Committees on Appropriations.
Finally, the Act authorized
appropriations to the fund of at least $345 million for the FY2003 through FY2007
period.14
Presidential Initiatives
Presidential initiatives to encourage the use of IT in rulemaking can be traced
to at least the start of the Clinton Administration. In September 1993, the President
announced the results of the National Performance Review,15 and one of the review’s
specific recommendations was that agencies should “Use information technology and
other techniques to increase opportunities for early, frequent and interactive public
participation during the rulemaking process and to increase program evaluation
efforts.”16 The Clinton Administration also took several other actions to promote
electronic government initiatives.17
14
The Act authorized $45 million for FY2003, $50 million for FY2004, $100 million for
FY2005, $150 million for FY2006, and “such sums as are necessary for fiscal year 2007.”
15
For a description of this effort, see CRS Report RL30596, The National Performance
Review and Other Government Reform Initiatives: An Overview, 1993-2001, by Harold C.
Relyea, Maricele J. Cornejo Riemann, and Henry B. Hogue.
16
Office of the Vice President, From Red Tape to Results: Creating a Government That
Works Better and Costs Less, Report of the National Performance Review (Washington:
GPO, 1993), p. 168 (recommendation REG04).
17
For example, in July 1996, President Clinton issued Executive Order 13011 on “Federal
Information Technology,” which, among other things, established a Chief Information
Officers Council as the principle interagency forum to improve agency information resource
management and to “share experiences, ideas, and promising practices.” Also, a December
17, 1999, presidential memorandum on electronic government directed federal agencies to
take steps to address the public’s growing demand for online services and access to
(continued...)
CRS-6
The subsequent Bush Administration made electronic government one of the
five components of its President’s Management Agenda. The President’s EGovernment Strategy, released by OMB on February 27, 2002, identified 24
government-wide initiatives, one of which was e-rulemaking.18 DOT was initially
named managing partner of the initiative, and six other agencies were initially named
as partners — EPA, HHS, DOL, USDA, the Federal Communications Commission
(FCC), and the General Services Administration (GSA). The initiative is also guided
by an executive committee (composed of 25 agency chief information officers) and
other boards. For example, a “change control board” reviews and determines which
requests for changes to the system will be approved.19 OMB has representatives on
the executive committee from both its Office of Information and Regulatory Affairs
(OIRA) and its Office of Electronic Government and Information Technology (often
referred to as OMB’s “e-government” office).
The Administration’s e-rulemaking initiative has been given several awards,
including (1) the 2007 Intergovernmental Solutions Award from the American
Council for Technology, (2) a 2007 Excellence.Gov “Top Five” Winner award from
the Industry Advisory Council Collaboration and Transformation Shared Interest
Group, and (3) a 2004 Public Access to Government Information Award from the
American Association of Law Libraries. The initiative is also being examined by a
“Committee on the Status and Future of E-Rulemaking” composed of prominent
scholars and practitioners. The committee was organized under the auspices of the
Administrative Law Section of the American Bar Association, and is expected to
produce a report in early 2008 containing recommendations to Congress and the
President for both immediate and longer term actions.20
E-rulemaking Modules
The Administration’s e-rulemaking initiative was designed to occur in three
separate phases or “modules”: (1) a central “front-end” system (known as
“Regulations.gov”) in which the public could identify rules that were open for
comment and provide comments on those rules; (2) a government-wide electronic
rulemaking docket (the Federal Docket Management System, or FDMS) that would
allow the public to review the comments that had been submitted on the rules and
regulatory supporting materials (e.g., agencies’ legal and cost-benefit analyses); and
(3) an integrated federal rulemaking system (sometimes referred to as a regulatory
“toolbox,” “workbench,” or “desktop”) in which agencies could access various rule
development tools. The third module was conceived as a voluntary part of the
17
(...continued)
information.
18
See [http://www.whitehouse.gov/omb/inforeg/egovstrategy.pdf] for a copy of this
document.
19
U.S. Government Accountability Office, Electronic Rulemaking: Progress Made in
Developing Centralized E-Rulemaking System, GAO-05-777, September 9, 2005, p. 20.
20
Links describing this committee’s purpose and operation, and its membership, can be
found at [http://ceri.law.cornell.edu/news-blue-ribbon.php].
CRS-7
initiative, and has always been less defined. The first e-rulemaking module was
initiated fairly quickly, but the second module has been plagued with implementation
problems.
Module 1: Regulations.gov
In January 2003, the Administration launched the Regulations.gov website.
There, the public could review all proposed rules that were open for public comment
by agency, and could identify such “open” rules even if they did not know which
agency had issued the rule.21 An OMB press release issued at the start of
Regulations.gov said that the website would “make the federal rulemaking process
more accessible and enable citizens and small businesses to quickly access and
comment on hundreds of open proposed rules from all federal agencies. This
consolidation is estimated to save $94 million by creating a single system for the
entire federal government.”22 The website was expected to be able to handle 12,000
comments per hour,23 and one of the Administration’s initial goals for this initiative
was to receive 200,000 comments via Regulations.gov (although the time frame for
receipt of these comments was not specific).24
In September 2003, GAO issued a report examining the early implementation
of Regulations.gov.25 GAO reported that the new website was generally more
effective than the systems that the individual agencies used both to identify rules that
were open for comment and to allow the public to comment on the rules
electronically. However, GAO reported that only two of the 411 proposed rules that
were issued in the first three full months of implementation mentioned
Regulations.gov as a commenting option, perhaps explaining why so few comments
were being submitted through the new system.26 GAO also reported that about one-
21
For example, if a member of the public believed that an agency had published a proposed
rule on wetlands management but did not know if it was issued by EPA, the Department of
the Interior, or the Army Corps of Engineers, the person could enter the word “wetlands”
in the search box and find a list of all rules open for comment with the word “wetlands” in
the title.
22
U.S. Executive Office of the President, Office of Management and Budget,
“Regulations.gov to Transform U.S. Rulemaking Process and Save Nearly $100 Million,”
January 23, 2003. It was not clear how Regulations.gov (as opposed to the consolidated
docket system in module 2) would yield such savings.
23
Cindy Skrzycki, “U.S. Opens Online Portal to Rulemaking; Website Invites Wider
Participation in the Regulatory Process,” Washington Post, January 23, 2003, p. E01.
24
U.S. Executive Office of the President, “Implementing the President’s Management
Agenda for E-Government: E-Government Strategy,” April 2003, p. 26, available at
[http://www.whitehouse.gov/omb/egov/2003egov_strat.pdf]. The document did not indicate
a date for this goal.
25
U.S. General Accounting Office, Electronic Rulemaking: Efforts to Facilitate Public
Participation Can Be Improved (GAO-03-901), September 17, 2003.
26
Although EPA reported receiving many “hits” or “page views” on the website, EPA said
only about 200 comments were received from the public during this period via
(continued...)
CRS-8
third of all rules (including more than 40% of EPA rules) did not permit the public
to comment electronically. GAO recommended that OMB issue guidance to the
agencies on ways to improve commenting, instructing agencies to provide a link to
Regulations.gov on their websites and note in the preambles of their proposed rules
the availability of Regulations.gov as a commenting option. GAO also recommended
some specific changes to Regulations.gov (e.g., using the titles of the rules as they
appear in the Federal Register).
In response to GAO’s recommendations, on March 1, 2004, Karen Evans of
OMB’s e-government office and John Graham of OIRA sent a memorandum to the
President’s Management Council asking agencies to make the public more aware of
the online rulemaking website and the ability to comment on rules.27 Specifically,
the memorandum asked agencies to mention Regulations.gov in the “Addresses”
section of their Federal Register notices, and to include a link to Regulations.gov on
their websites. Attached to the memorandum was an “Addresses” template suggested
by the Office of the Federal Register in which the public would be allowed multiple
means of submitting comments (i.e., Regulations.gov, an agency website, e-mail, fax,
mail, and hand delivery). In April 2007, OMB required agencies to process
comments on economically significant guidance documents via Regulations.gov.28
In August 2007, the acting director of the e-rulemaking initiative reported that,
from the launch of Regulations.gov through July 2007, 107,812 comments had been
submitted via Regulations.gov.29 About half of those comments were submitted in
June and July 2007. The acting director did not explain why the number of
comments had increased so significantly at the end of this period, and did not put the
total number of comments submitted via Regulations.gov in context with the total
number of comments that had been submitted through other means. Federal agencies
issue thousands of proposed rules each year, and federal agencies sometimes receive
thousands of comments on individual rules.30 Therefore, the 107,812 comments
26
(...continued)
Regulations.gov. For example, while EPA got 300,000 comments through its own website
on a new pollution control program rule, GAO reported that the agency got only eight
comments on the rule through Regulations.gov.
27
Jason Miller, “E-Gov Act implementation picking up steam,” Government Computer
News, March 11, 2004.
To view a copy of this memorandum, see
[http://www.whitehouse.gov/omb/inforeg/memo_pmc_egov.pdf].
28
Memorandum from Rob Portman, U.S. Executive Office of the President, Office of
Management and Budget, “Implementation of Executive Order 13422 (amending Executive
Order 12866) and the OMB Bulletin on Good Guidance Practices,” April 25, 2007, p. 6. To
view a copy of this document, see [http://www.whitehouse.gov/omb/memoranda/fy2007/
m07-13.pdf].
29
John Moses, Acting Director, eRulemaking Program, “Tapping Technology to Better
Address Public Comments,” presented at Best Practices in Regulatory Development: A
Conference for Federal Regulatory Professionals, Washington, DC, August 21, 2007.
30
For example, EPA reportedly received more than 540,000 comments on a proposed rule
to control mercury emissions from power plants. See Steve Cook, “EPA Gets Detailed
Analysis of Plans To Control Mercury From Power Plants,” BNA Daily Report for
(continued...)
CRS-9
submitted via Regulations.gov between January 2003 and July 2007 likely represents
only a small fraction of the total number of comments filed on rules published during
that period.
Electronic Commenting Options Vary. As noted earlier in this report, a
few months after Regulations.gov was launched in 2003, GAO examined what
commenting options provided to the public and discovered that agencies only rarely
mentioned Regulations.gov as a commenting option (two out of 411 rules). To
determine if this condition had changed, CRS examined the commenting options
provided to the public in 59 proposed rules published in the Federal Register from
August 1, 2007, through August 7, 2007. Almost all of the rules mentioned
Regulations.gov, and most allowed a variety of commenting options — typically via
regular postal mail, hand delivery, e-mail to an agency address, and Regulations.gov.
However, the agencies differed substantially in the electronic commenting options
provided to the public.
!
Three agencies (the Centers for Medicare and Medicaid Services
[CMS] within HHS, the Federal Energy Regulatory Commission
[FERC], and the Legal Services Corporation) did not mention
Regulations.gov as a commenting option.
!
In several agencies (the Agricultural Marketing Service, the Animal
and Plant Health Inspection Service [APHIS], and the Rural Utilities
Service within USDA; the Internal Revenue Service; GSA; the
Department of Homeland Security [DHS]; the Office of Federal
Thrift Supervision; and the Department of Education [ED]),
Regulations.gov was the only electronic commenting option
available.31
!
One agency (the Federal Mediation and Conciliation Service)
offered no electronic commenting option (i.e., neither an agency email address nor Regulations.gov); the agency only provided a
regular postal mail address to which comments could be sent.
!
Two agencies (the Securities and Exchange Commission [SEC] and
the Nuclear Regulatory Commission [NRC]) permitted electronic
commenting in three forms — by e-mail to the agency, to an agency
website, or through Regulations.gov.32
30
(...continued)
Executives, August 27, 2004, p. A-13. An FCC media ownership rule reportedly resulted
in more than 2 million comments. See Cheryl Bolen, “FCC Postpones New Rulemaking on
Contentious Media Ownership Rules,” BNA Daily Report for Executives, July 15, 2005, p.
A-6.
31
In most cases, the agencies simply did not provide another electronic option, but the
Department of Education said, “We will not accept comments by fax or e-mail.”
32
SEC permitted electronic comments via the Commission’s internet comment form at
[http://www.sec.gov/rules/proposed.shtml], by e-mail at [rule-comments@sec.gov], or
(continued...)
CRS-10
In some cases, there were differences in the commenting options available
within departments and agencies. For example, as noted above, three agencies within
USDA did not allow electronic comments other than through Regulations.gov, but
the department’s Grain Inspection, Packers and Stockyards Administration allowed
commenting via both agency e-mail and Regulations.gov.
The Federal
Communications Commission (FCC) allowed comments via Regulations.gov or an
agency website in one rule, but in other rules published the same day, FCC only gave
the agency’s street address. The Department of the Interior’s (DOI) Fish and Wildlife
Service allowed comments by mail, hand-delivery, or e-mail to the agency, fax, or
Regulations.gov for two rules, but another proposed rule published the same day did
not mention Regulations.gov.
Several other facets regarding these rules are also notable.
!
In one rule, the Centers for Medicare and Medicaid Services (CMS)
within HHS required comments on the information collection
aspects of the rule to be submitted in a separate manner than the
other parts of the rule (by mail to either CMS or OMB, with an email address provided only for the OMB contact).33
!
In the two rules published by FERC, those not filing comments
electronically were required to mail or hand-deliver 14 copies of
their comments to FERC in Washington — a clear incentive to file
comments electronically.
!
EPA generally allowed comments in multiple forms (i.e., postal
mail, e-mail to the agency, Regulations.gov, and usually fax).
However, in one case, the agency published a proposed and direct
final rule on the same issue on the same day.34 EPA only provided
a regular mail address in the proposed rule (no mention of
Regulations.gov or an e-mail address), and said anyone wanting to
file comments electronically or by hand should look in the direct
final rule for how to do so.35
32
(...continued)
through Regulations.gov. NRC allowed electronic comments e-mail at [SECY@nrc.gov],
via the NRC rulemaking website at [http://ruleforum.llnl.gov], and via Regulations.gov.
33
In addition to obtaining comments on the substance of the rule pursuant to the APA, the
Paperwork Reduction Act (35 U.S.C. § 3506) requires agencies to obtain public comments
on any information collection requirements in the rule.
34
“Direct final” rulemaking involves agency publication of a rule in the Federal Register
with a statement that the rule will be effective on a particular date unless an adverse
comment is received within a specified period of time (e.g., 30 days). However, if an
adverse comment is filed, the direct final rule is withdrawn and the agency may publish the
rule as a proposed rule under normal rulemaking procedures. In some cases, to avoid delay,
agencies publish direct final and proposed rules on the same day.
35
U.S. Environmental Protection Agency, “Extension of Cross-Media Electronic Reporting
Rule Deadline for Authorized Programs,” 72 Federal Register 43212, August 3, 2007.
CRS-11
Also, EPA usually said that comments submitted via Regulations.gov were
anonymous, whereas comments sent directly to EPA would not be anonymous (with
commenters’ e-mail addresses captured automatically and placed in the public
rulemaking docket) — again, an implicit incentive to use Regulations.gov.
Nevertheless, the acting director of the e-rulemaking initiative said in August 2007
that EPA received 95% of its comments via e-mail, not through Regulations.gov.36
Therefore, to enter those comments into FDMS, they must be copied and posted into
the FDMS Web form.
Module 2: Federal Docket Management System
Although the construction of a single, government-wide commenting system
that became “Regulations.gov” was relatively quick and uncontroversial, the effort
to build an electronic rulemaking docket — the second phase of the e-rulemaking
project — has been a subject of continuing controversy and repeated delays in
implementation. In early 2002, OMB reportedly contracted with a consulting firm
to determine whether the electronic docket should be built as a single, centralized
system, or whether a more “distributed” design should be used that builds on existing
electronic docketing systems in certain agencies. OMB reportedly selected the
centralized approach based on the consultant’s conclusion that it would be more cost
effective, more stable, and provide greater scope and functionality.37
Daniels Memorandum. On May 3, 2002, OMB Director Mitchell E.
Daniels, Jr., sent a memorandum to the heads of all executive departments and
agencies informing them of “our intention to consolidate redundant IT systems
relating to the President’s online rulemaking initiative” because they make it difficult
to find and comment on proposed rules, create performance gaps, and lead to
“duplicative spending.”38 The Director said OMB had already identified several
potentially redundant systems related to rulemaking, including systems at DOT, EPA,
and the Food and Drug Administration (FDA). The memorandum went on to say that
OMB would review the business cases for the redundant systems and, based on the
results, “a single, front-end Web application for receiving public comments on
proposed agency rules will be leveraged and used by federal rulemaking agencies.”
Following the completion of this phase (which was then scheduled for the end of
2002), OMB said it would move to the development of a consolidated “back-end”
docketing system by the end of 2003.
36
John Moses, Acting Director, eRulemaking Program, “Tapping Technology to Better
Address Public Comments,” presented at Best Practices in Regulatory Development: A
Conference for Federal Regulatory Professionals, August 21, 2007.
37
Ralph Lindeman, “Structural, Other Flaws Said to Impede Effectiveness of E-Rulemaking
Website,” BNA Daily Report for Executives, March 30, 2007, p. C-5.
38
Memorandum from Mitchell E. Daniels, Jr., Director of OMB, to the heads of executive
departments and agencies, May 3, 2002, accompanied by an OMB press release entitled
“OMB Accelerates Effort to Open Federal Regulatory Process to Citizens and Small
Businesses: E-government initiative removes barriers to public comment; leads to higher
quality rules,” May 6, 2002.
CRS-12
Change in Leadership. Also in May 2002, DOT contracted with Excella
Consulting to conduct an independent validation and verification analysis of
functional and technical characteristics of seven existing e-rulemaking docket
systems.39 The primary objective of the study was to identify the optimal platform
to serve as the consolidated electronic rulemaking docket platform for the entire
federal government.40 Three months later, on August 23, 2002, Excella Consulting
submitted its “Cross Agency eDocket Assessment” to DOT. Excella concluded that
EPA’s newly developed EDOCKETS system was the best suited overall to serve as
the basis for a government-wide centralized docket system. Reportedly on the basis
of this study, OMB replaced DOT with EPA as managing partner of the initiative.
However, another explanation for the shift in leadership was offered by Mark
Forman, who served as OMB administrator for e-government from June 2001
through August 2003. In March 2007, Mr. Forman was quoted as saying that DOT
officials at the time were “not willing to surrender their own agency approach” or
“accept the advantages” of using a single docket system for e-rulemaking, and instead
preferred the “distributed” design with links to agency websites.41 Because EPA
officials agreed to the centralized approach, Mr. Forman said the leadership of the
initiative was given to EPA.
A Centralized Docket. In September 2003, EPA awarded an indefinitedelivery, indefinite-quantity contract to a team led by Lockheed Martin Corporation
to “integrate federal online rule-making systems with the Regulations.gov portal.”42
The contract was reportedly for one year, with four one-year options, and was
estimated to be worth up to $98 million.43 As discussed more fully later in this
report, EPA and OMB considered three general options for how the governmentwide docketing system should be structured: (1) a single centralized system, (2) a
“distributed” system in which agencies with their own electronic dockets would be
linked to a main system used by agencies without such dockets, and (3) a “tiered”
system in which “single systems are geographically dispersed but interface with a
main system.”44 In February 2004, e-rulemaking executive committee members
39
The seven agencies whose docket systems were evaluated by Excella were EPA, DOT,
the Occupational Safety and Health Administration, NRC, FCC, the Food and Drug
Administration, and the Department of Energy.
40
Some agency officials told CRS that the Excella study was not to identify the best existing
docket system, but rather to identify the best elements of all federal systems that could then
be incorporated into a single new government-wide system.
41
Ralph Lindeman, “Structural, Other Flaws Said to Impede Effectiveness of E-Rulemaking
Website.”
42
Jason Miller, “EPA hires Lockheed for rule-making systems,” Government Computer
News, October 1, 2003, available at [http://www.gcn.com/online/vol1_no1/23739-1.html].
43
Other press accounts described it as a seven-year contract funded for five years at $98
million, and said it was “to develop a centralized federal docket management system.” See
Gail Repsher Emery, “Government defends e-rulemaking,” Washington Technology, March
22, 2004, at [http://www.washingtontechnology.com/print/18_24/23061-1.html].
44
Jason Miller, “E-Rulemaking team studies three technical directions,” Government
(continued...)
CRS-13
reportedly decided by a vote of 15-2 to build a single federal rulemaking docket.45
FCC and DOI reportedly voted against the centralized docket approach, with FCC
saying its own system (in place since 1998) would cost less. Proponents of the
centralized docket said its primary advantage over the other approaches was its
government-wide docket searching capability. OMB also reportedly said the
centralized docket would save $70 million over five years, and would cost about $20
million to build, plus $6 million a year to operate and maintain.46
Although OMB and EPA indicated that the centralized docket system was being
built to meet the public’s needs, some observers complained that the public had not
been adequately consulted on its design or features.47 In early June 2004, the School
of Public Policy and Public Administration at George Washington University hosted
a series of half-day workshops on the initiative designed to solicit input from various
end-user communities (e.g., large and small businesses, state and local governments,
good government groups, and the legal and lobbying professions).48 On July 16,
2004, EPA published a notice in the Federal Register announcing a series of public
meetings and an online dialogue on the three phases of the e-rulemaking initiative.49
Specifically, EPA invited comments on the usability and features of Regulations.gov,
the planned docket management system, and the “rulewriter’s toolbox.” The
meetings were scheduled for August 2 (San Francisco), August 3 (Chicago), August
9 (Cambridge, MA), and August 12 (Washington), and the online dialogue was
scheduled for August 9 (hosted by Harvard’s JFK School of Government). EPA said
that comments received through these discussions would be considered during the
development and enhancement of these systems.50
44
(...continued)
Computer News, January 5, 2004, at [http://www.gcn.com/online/vol1_no1/24534-1.html].
45
Cindy Skrzycki, “Project Aims for One-Stop Online Shopping for Federal Rules,”
Washington Post, March 30, 2004, p. E01. See also Jason Miller, “E-Rulemaking will use
a centralized docket system,” Government Computer News, April 1, 2004, at
[http://www.gcn.com/online/vol1_no1/25467-1.html?topic=e_gov]. According to some
sources, the agency representatives voting were primarily the agencies’ chief information
officers or their delegates, not representatives from the rulemaking elements of the agencies.
46
Ibid.
47
For example, Robert Carlitz of Information Renaissance said, “We have been disappointed
that, although a major objective of the e-rulemaking effort is to enhance public involvement
in the rulemaking process, EPA and OMB staff have not been willing to have any significant
public input to their own development process in its early stages.” Cindy Skrzycki, “Project
Aims for One-Stop Online Shopping for Federal Rules,” Washington Post, March 30, 2004,
p. E-1.
48
To view the presentations at this workshop, see [http://erulemaking.ucsur.pitt.edu/talks.
htm].
49
U.S. Environmental Protection Agency, “Forum on Public Access to Federal Rulemaking
Through the Internet: Announcement of Public Meetings and Request for Comment,” 69
Federal Register 42727, July 16, 2004.
50
Ibid., p. 42728.
CRS-14
In September 2005, GAO reported that officials in the e-rulemaking program
office had “extensively collaborated with rulemaking agencies” during the
construction of FDMS, and most agency officials that GAO contacted felt their
suggestions had affected the development of the system.51 GAO also said that the erulemaking officials followed all but a few of the key practices for successfully
managing an initiative, and other parts of the report discussed how the centralized
design for FDMS was selected and how the $94 million savings estimate was
developed (both of which are further discussed later in this report). However, GAO
recommended that EPA ensure that written agreements between it and participating
agencies include performance measures that address such issues as system
performance, maintenance, and cost savings — measures that GAO said “are
necessary to provide criteria for evaluating the effectiveness of the e-Rulemaking
initiative as well as for determining if the initiative is operating in the most efficient
and economical manner.”52
Also in September 2005, the Regulations.gov website was upgraded and
expanded to allow the public to access rulemaking docket contents for the agencies
that had migrated into the system earlier that year. As discussed later in this report,
though, subsequent implementation was put on hold from December 2005 until July
2006 because of restrictions placed in the appropriation bill funding OMB and other
agencies.
Implementation Status. Because of funding difficulties and other issues, the
pace at which FDMS has been implemented has been slower than originally planned.
For example, according to the Administration’s “E-Government Strategy” that was
issued in April 2003, the migration of agencies with “legacy web-based” docket
systems to the government-wide system was to have begun in July 2003, and was to
have been completed by the end of September 2004.53 According to an EPA “Capital
Asset Plan and Business Case” that was submitted to OMB in September 2003, 12
federal departments and agencies were to be migrated into FDMS by the end of
September 2004 (including some with substantial rulemaking activity),54 with more
than 100 other departments and agencies following in 2005. However, the first
agencies did not begin to migrate into FDMS until May 2005. According to the
business case for budget year (BY) 2008, a total of seven federal entities had been
migrated into FDMS by July 1, 2006 — EPA, the Department of Energy (DOE), the
Department of Defense (DOD), GSA, DHS (less the Transportation Security Agency
51
U.S. Government Accountability Office, Electronic Rulemaking: Progress Made in
Developing Centralized E-Rulemaking System, GAO-05-777, September 9, 2005, p. 4.
52
Ibid., pp. 21-22.
53
U.S. Executive Office of the President, “Implementing the President’s Management
Agenda for E-Government: E-Government Strategy,” April 2003, p. 26.
54
U.S. Environmental Protection Agency, “Capital Asset Plan and Business Case,”
September 8, 2003, pp. 56-59. The 12 departments and agencies scheduled for
implementation in 2004 included HHS, DOI, DOT, and EPA, which collectively account for
a significant portion of all proposed rules published each year. This and other business
cases discussed in this report are required by OMB Circular A-11, Section 300-17.
CRS-15
and the U.S. Coast Guard), APHIS, and the National Aeronautics and Space
Administration (NASA).55
During 2007, the pace of implementation increased. According to performance
measures published on the OMB website, 20 of 26 “Scorecard” agencies had
implemented FDMS as of March 2007, with the systems providing supporting
materials and public submissions for 43% of all regulations.56 OMB also said that
there had been more than 20 million downloads of rules and regulations through the
e-rulemaking site. According to the Regulations.gov website, agencies brought onto
the system in 2007 included the Department of Justice (DOJ) (June 15); the Bureau
of Indian Affairs, the Bureau of Reclamation, and the National Park Service within
DOI (June 25); and the Bureau of Industry and Security within the Department of
Commerce (DOC) (August 17). At a conference in August 2007, the acting director
of the e-rulemaking initiative said that 25 departments and agencies used the site,
representing 44% of federal rulemaking output.57 By the first quarter of FY2008, he
said departments and agencies representing more than 90% of federal rulemaking
output would be using FDMS. On September 24, 2007, DOT (the agency with the
largest amount of rulemaking activity) announced that its own docket management
system (DMS) would be replaced by FDMS effective September 30, 2007.58
According to the acting director of the e-rulemaking initiative, the NRC and the
remainder of DOI were scheduled to migrate to FDMS in the first quarter of FY2008,
and FDA and CMS were scheduled for the second quarter of FY2008.59
Also, a major implementation milestone was reached in August 2007 when,
according to NARA, a “Records Management Module” meeting DOD records
management standards began implementation in FDMS, indicating that the system
is compliant with NARA records management regulations.60 Therefore, as agencies
migrate to FDMS, NARA said they can mark their documents as records that will be
55
See [http://www.epa.gov/OEI/cpic/by2008/eRulemaking.pdf], pp. 8-9, to view a copy of
the BY2008 e-rulemaking business case and implementation schedule. The agencies that
were in FDMS as of July 2006 were EPA, DOE, DOD, GSA, DHS (less the Transportation
Security Agency and the U.S. Coast Guard), APHIS within USDA, and NASA.
56
To view this report, see [http://www.whitehouse.gov/omb/egov/c-7-22-b-erule.html].
57
John Moses, Acting Director, eRulemaking Program, “Tapping Technology to Better
Address Public Comments,” presented at Best Practices in Regulatory Development: A
Conference for Federal Regulatory Professionals, Washington, DC, August 21, 2007.
58
U.S. Department of Transportation, Office of the Secretary, “DOT’s Migration to the
Federal Docket Management Systems (FDMS),” 72 Federal Register 54315, September 24,
2007.
59
E-mail to the author of this report from the acting director of the e-rulemaking initiative,
October 12, 2007.
60
E-mail and telephone call with Nancy Allard, Senior Policy Specialist, Policy and
Planning Staff, NARA, August 29, 2007. According to NARA, one of the ways that an
agency can ensure that a system is fully compliant with NARA regulations (36 CFR Chapter
XII, Subchapter B) is to have a DOD-certified (DoD 5015.2 STD) records management
application as part of the system. To view the DOD standard, see [http://jitc.fhu.disa.
mil/recmgt/p50152stdapr07.pdf].
CRS-16
managed in accordance with NARA’s requirements. Agencies with existing
electronic dockets may transfer those records into FDMS, and agencies with paper
dockets may digitize them and send them to FDMS (although doing so is expensive).
However, because FDMS is a “date forward” system, agency rulemaking dockets that
are not transferred will still need to be maintained by the agency for as long as the
agency needs them. As a result, the agencies will have to pay for existing electronic
or paper docket systems in addition to FDMS.
In its Report to Congress on the Benefits of the President’s E-Government
Initiatives, Fiscal Year 2008, OMB said that as of January 15, 2008, 29 departments
and independent agencies had fully implemented FDMS — representing 90% of
federal rulemaking activity.61 OMB also said that more than 3,900 federal agency
users from more than 160 rulemaking entities were registered users of FDMS.
Performance Shortfalls. This progress notwithstanding, in September 2007,
GAO reported that the e-rulemaking initiative at EPA was on OMB’s June 2007 list
of high-risk IT projects with performance shortfalls.62 Specifically, GAO said that
e-rulemaking fell short because the cost and schedule variance was not within 10%
of expectations. Also on the list of high-risk projects were e-rulemaking migrations
by ED and DOT (because of unclear cost, schedule and performance baselines) and
DHS (because of unclear baselines, cost and schedule variance not within 10%, the
project manager was not qualified, and the project was duplicative of another
project).
E-rulemaking Implementation Issues
A number of questions have been raised regarding the implementation of erulemaking in the federal government, including how the effort has been funded, the
centralized nature of the government-wide docket system, the estimated and actual
costs and benefits of FDMS, the functionality of the system, and the effect of erulemaking on public participation. Each of these issues is discussed below.
Funding Through Agency Contributions
Although the E-Government Act of 2002 authorized the E-Government Fund
to receive at least $345 million for e-government projects from FY2003 through
FY2007, appropriations to the fund during this period were much less — $5 million
in both FY2003 and FY2004, and $3 million in FY2005, FY2006, FY2007, and
FY2008. The lack of direct appropriations for e-government has led to controversial
funding mechanisms, in which at least 10 e-government projects (including e-
61
Office of Management and Budget, Report to Congress on the Benefits of the President’s
E-Government Initiatives, Fiscal Year 2008, p. 9, available at
[http://www.whitehouse.gov/omb/egov/documents/FY08_Benefits_Report.pdf].
62
U.S. Government Accountability Office, Information Technology: Further Improvements
Needed to Identify and Oversee Poorly Planned and Performing Projects, GAO-07-1211T,
p. 28.
CRS-17
rulemaking) have been funded by required “contributions” from participating
agencies.63 EPA and OMB officials told CRS that they did not know how the
decision was made to fund E-rulemaking in this manner. According to one article,
e-government projects funded in this manner have been less successful than projects
paid for and managed by single agencies — in part because of the absence of a
consistent funding stream.64
At least two funding-related issues have arisen regarding these collaboratively
financed projects, one involving erroneous OMB budget instructions to the agencies
and the other involving congressional opposition to the funding procedure. Before
discussing these issues, however, the following section discusses the amount of
agency contributions to the e-rulemaking initiative.
Agency Contributions to E-rulemaking. According to a “Capital Asset
Plan and Business Case” for the e-rulemaking initiative that was prepared by EPA
and submitted to OMB in September 2003, a “cost allocation model” was developed
to determine the amount that each participating agency was required to contribute to
the project, with relevant factors including the size of the agencies’ budgets, the
average annual number of rules and non-rule items that they publish, and the average
annual number of comments that they receive.65 Agencies were placed in one of five
groups or “tiers,” with planned annual contribution amounts ranging from less than
$100,000 to nearly $900,000. In addition to these contributions to build FDMS,
agencies were also reportedly “responsible for their respective costs to migrate into
the new eRulemaking [docket] system and docket operation cost.”66
An earlier, June 2003, version of the business case indicated that, when DOT
was the managing partner of the e-rulemaking initiative, the department had
requested $5 million in FY2003 for the initiative.67 Following budget passage and
the shift in leadership of the initiative from DOT to EPA, the document indicated that
$4,847,500 was transferred from DOT to EPA via an interagency agreement.
(According to GAO, DOT provided monetary funds and in-kind support in lieu of
transferring the full $5 million.68) Also, eight other departments and agencies were
reportedly “tapped” by OMB for $100,000 each in FY2003 to support the initiative.
GAO reported that the Federal Elections Commission provided $185,000 (even
63
For a discussion of this funding arrangement in general, see U.S. Government
Accountability Office, Electronic Government: Funding of the Office of Management and
Budget’s Initiatives, GAO-05-420, April 25, 2005.
64
Daniel Pulliam, “E-Gov at Five Years, Part Four: Mixed Results,” GovExec.com, August
31, 2006, at [http://www.govexec.com/dailyfed/0806/083106eg4.htm].
65
U.S. Environmental Protection Agency, “Capital Asset Plan and Business Case,”
September 8, 2003, p. 24.
66
Ibid., p. 25.
67
U.S. Environmental Protection Agency, “Draft Capital Asset Plan and Business Case,”
June 27, 2003, p. 31. This document was prepared pursuant to OMB Circular A-11, Section
300-17.
68
U.S. Government Accountability Office, Electronic Government: Funding of the Office
of Management and Budget’s Initiatives, p. 27.
CRS-18
though no contribution had been planned from the agency), bringing the total of
agency contributions that year to $5,732,500.
In each subsequent fiscal year, the e-rulemaking executive committee has
decided how much agencies should contribute to the e-rulemaking project, with the
amount based on the above-mentioned cost allocation model. Each year, EPA enters
into a standardized memorandum of understanding with each participating agency for
the funds transfer, and those funding amounts are approved by OMB as part of the
budget “passback” approval process.69 During testimony before the House
Committee on Government Reform in July 2004, Kimberly Nelson, who was then
EPA’s Chief Information Officer and co-chair of the e-rulemaking executive
committee, said this allocation model “covers start-up and development work,” and
indicated that a separate user-fee approach would be developed for ongoing
operations and maintenance.70
As shown in Table 1 below, federal agencies have contributed more than $53
million to the e-rulemaking initiative from FY2003 through FY2008. Some agencies
have been consistently required to contribute to the development of FDMS, while
other agencies have either not been required or instructed to contribute, or their
contributions were delayed until late in the year. Notably, some major rulemaking
agencies have not contributed any funds to the e-rulemaking initiative (e.g., FCC and
the SEC), but will likely benefit from its implementation. Agency representatives
told CRS that the agency contribution amounts for FY2009 were agreed upon in late
September 2007, and in some cases are significantly higher than previous amounts.
For example, DOT’s contribution for FY2009 will reportedly be at least $1.1 million,
69
According to the acting director of the e-rulemaking initiative, the mechanics of the funds
transfers are as follows. The E-rulemaking program management office (PMO) distributes
an MOU and an Interagency Agreement (IAA) to partner agencies. Partner agencies sign
both documents and return them to the PMO. The PMO signs both documents and forwards
them to EPA’s Office of Grants and Interagency Agreement group for final processing and
acceptance. During the grant specialist’s review of the package, the Office of the Chief
Financial Officer is contacted to obtain a unique reimbursable account code. The account
code is critical to the interagency agreement and is the tracking mechanism for obligations
and expenditures incurred to perform the work requested in the interagency agreement.
When the review is completed, executed copies of the agreement are distributed to the
appropriate offices (i.e., the PMO, the partner agency, the budget office, and Chief Financial
Officer). Reimbursable authority must be issued for each interagency agreement. Once the
Interagency agreement is fully executed, the PMO enters a reprogramming request in EPA’s
Integrated Financial Management System (IFMS) by budget object class. The budget
division reviews these requests and approves these reprogramming requests. Once
approved, the Finance Office activates the account code in EPA’s Integrated Financial
Management System. Once the account code is activated in IFMS, funding documents to
perform work under the Interagency Agreement can be executed. The Finance Office
reviews all reimbursable Interagency Agreement obligations and expenditures recorded
against the unique reimbursable account code to determine the amount to bill the partner
agency. A bill is issued to the partner agency when the amount is reflected as expended.
70
Testimony of Kimberly T. Nelson, Assistant Administrator for Environmental Information
and Chief Information Officer, Environmental Protection Agency, in U.S. Congress, House
Committee on Government Reform, Federal Government Management of Information
Technology, hearing, 108th Cong., 2nd sess., July 21, 2004.
CRS-19
and may be as high as $1.8 million — significantly more than the department’s
$735,000 contribution for FY2008. (Prior to migration to FDMS, DOT’s own docket
management system reportedly cost about $550,000 per year to operate.) OMB
officials said that the contribution amounts for FY2009 were simply
recommendations to OMB, and are part of the FY2009 budget development process.
Table 1. Agency Contributions to E-rulemaking
Contributions to E-Rulemaking Initiative
(in thousands of $)
Agency
FY2003 FY2004
FY2005
FY2006 FY2007 FY2008
Total
USDA
—
$0*
$885
$825
$855
$735
$3,300
DOC
—
$0*
$355
$825
$855
$735
$2,770
DOD
$100
$775
$355
$825
$615
$535
$3,205
—
$0*
$180
$175
$155
$135
$645
DOE
$100
$186*
$355
$825
$280
$241
$1,987
HHS
$100
$775
$885
$825
$855
$735
$4,175
DHS
—
$750
$885
$825
$855
$735
$4,050
HUD
$100
$300
$355
$500
$280
$241
$1,776
DOI
—
$0*
$885
$825
$615
$535
$2,860
DOJ
—
$0*
$355
$825
$280
$241
$1,701
DOL
$100
$775
$885
$825
$855
$535
$3,975
State
—
$0*
$180
$365
$155
$135
$835
DOT
$4,848
$544
$1,100
$825
$855
$735
$8,907
$100
$750
$885
$825
$615
$535
$3,710
VA
—
$180
$180
$365
$280
$135
$1,140
EPA
$100
$775
$885
$500
$615
$535
$3,410
FCC
—
$0*
—
—
—
—
$0
FERC
—
$0*
—
—
—
—
$0
Federal
Reserve
—
$0*
—
—
—
—
$0
GSA
—
$0*
$180
$175
$280
$241
$876
ED
Treasury
CRS-20
Contributions to E-Rulemaking Initiative
(in thousands of $)
Agency
FY2003 FY2004
FY2005
FY2006 FY2007 FY2008
Total
NASA
—
$0*
$180
$365
$280
$241
$1,066
NSF
—
$0*
$100
$175
$155
$135
$565
NRC
$0*
$0*
—
—
—
—
$0
OMB
—
$0*
—
—
—
—
$0
OPM
—
$0*
$180
0*
$155
$135
$470
SEC
—
$0*
—
—
—
—
$0
SBA
—
$25*
$180
$175
$155
$135
$670
SSA
—
$0*
$355
$175
$155
$135
$820
$185
$170
$100
—
—
—
$455
$5,733
$6,005
$10,885
$12,045 $10,200
$8,500
$53,368
Other
agencies
Total
Sources: Agency contributions for FY2003 and FY2004 are generally from GAO’s report on
Electronic Government: Funding of the Office of Management and Budget’s Initiatives, pp. 25-26.
Contributions for FY2005 are from the acting director of the e-rulemaking initiative. Contributions
for FY2006, FY2007, and FY2008 are generally from OMB’s Report to Congress on the Benefits of
the President’s E-Government Initiatives. The acting director indicated that some of the amounts in
the GAO and OMB reports were incorrect. For example, the GAO report indicated that the
Department of Veterans Affairs obligated none of its $300,000 planned contribution for FY2004
because the planned amount was not reflected in the OMB passback. However, the acting director
said that VA actually contributed $180,000 that year. He also corrected amounts in the OMB report
for FY2006 for DOD, HUD, and EPA. The above table reflects those corrections.
Notes: Acronyms not previously introduced are HUD (the Department of Housing and Urban
Development), State (the Department of State), VA (Department of Veterans Affairs), NSF (National
Science Foundation), OPM (Office of Personnel Management), SBA (Small Business Administration),
and SSA (Social Security Administration). “Other agencies” include the Federal Elections
Commission, the Federal Trade Commission, the National Archives and Records Administration, and
the Pension Benefit Guarantee Corporation. In FY2003, NRC asserted it was not subject to OMB’s
budget guidance because it derived most of its budget from user fees, so it did not make its planned
contribution of $100,000. In FY2004, the amounts with an asterisk (*) generally reflect reduced
amounts because the planned amounts (ranging from $85,000 to $775,000) were not reflected in the
OMB passback. OMB did not provide GAO with a reason why it did not make its planned
contribution of $85,000 in FY2004. In FY2006, OMB said that OPM did not obtain permission from
its appropriations subcommittee to provide funds ($175,000) for e-rulemaking.
Flawed OMB Budget Instructions. In an April 2005 report on the funding
of the e-government initiatives, GAO reported that 6 of the 10 e-government
initiatives that relied on agency contributions experienced funding shortfalls in 2003,
CRS-21
and 9 had more serious shortfalls in 2004.71 In particular, the e-rulemaking initiative
received only 51% of its planned FY2004 contributions ($5.85 million instead of the
planned $11.5 million). This gap in funding was reportedly caused by a mistake in
OMB budget process procedures. Although the e-rulemaking initiative’s funding
plan for FY2004 called for adding new funding partners (from 9 agencies to 35),
GAO said OMB did not reflect this expansion in its annual budget guidance
(“passback”) to the agencies. As a result, most of the new agencies did not contribute
to the initiative, some of which were slated to make substantial contributions. For
example, USDA was scheduled to contribute $775,000; DOI was to contribute
$750,000; and DOC, DOJ, VA, FCC, FERC, and SEC were each to send $300,000.
Eight other agencies were supposed to contribute $150,000 each (ED, State, the
Federal Reserve, GSA, NASA, NRC, OPM, and SBA). Because of the funding
shortfall, the initial migration of agencies into the new centralized docket system
during FY2005 reportedly had to be scaled back.72
Congressional Opposition to Transfers. As mentioned previously,
Congress has appropriated only a fraction of the amount authorized in the EGovernment Act and requested by the Administration from FY2003 through
FY2007.73 Congress has also indicated that transfers from the E-government Fund
cannot be made without prior congressional notification.74 For example, the
Consolidated Appropriations Act, 2004 (P.L. 108-199), enacted January 23, 2004,
(one year to the day after Regulations.gov was launched) provided $3.0 million for
the Electronic Government Fund — an amount that was characterized in the subtitle
of the section as “Including Transfer of Funds.” The legislation said that transfers
of this money to federal agencies to carry out e-government projects “may not be
made until 10 days after a proposed spending plan and justification for each project
to be undertaken has been submitted to the Committees on Appropriations.”75 The
Consolidated Appropriations Act, 2005 (P.L. 108-447), enacted December 8, 2004,
contained the same funding amount and the same provision regarding transfers of
71
U.S. Government Accountability Office, Electronic Government: Funding of the Office
of Management and Budget’s Initiatives, p. 2.
72
Ibid., pp. 25-26. Initially, 10 agencies were included for implementation in the first phase,
including DOT, DOE, HHS, DOI, and GSA. As a result of this error, however, the first
phase was scaled back to include only EPA, HUD, NARA, APHIS within USDA, and
portions of DHS.
73
The E-Government Act of 2002 authorized $45 million for FY2003, $50 million for
FY2004, $100 million for FY2005, $150 million for Fy2006, and “such sums as are
necessary for fiscal year 2007.” The President’s initial $20 million request was cut by
Congress to $5 million for FY2002, which was the amount provided for FY2003 as well.
Funding thereafter was held at $3 million for FY2004, FY2005, and FY2006. The President
requested $5 million for FY2007 and Senate appropriators concurred, but the House
approved the usual $3 million, as recommended in the House Appropriations Committee
report. The final amount provided for FY2007 was $2.9 million.
74
For a discussion of congressional restrictions in general, and on the transfer of
appropriated funds in particular, see CRS Report RL33151, Committee Controls of Agency
Decisions, by Louis Fisher.
75
118 Stat. 333.
CRS-22
funds to the agencies.76 Both the 2004 and 2005 appropriations acts also contained
provisions in the agency-specific sections stating that “None of the funds made
available in this Act may be transferred to any department, agency, or instrumentality
of the United States Government, except pursuant to a transfer made by, or transfer
authority provided in, this Act or any other appropriations Act.”77
In addition to these general restrictions on funds transfers, there have also been
specific efforts to restrict the use and transfer of funds for certain e-government
projects. For example, in the 108th Congress, Section 333 of the FY2005
appropriations bill for DOI (H.R. 4568) stated that “None of the funds in this or any
other Act may be used by the agencies funded in this Act to implement Safecom,
Disaster Management, E-Training, and E-Rulemaking.” However, this legislation
was never enacted, and the language was not included in the Consolidated
Appropriations Act, 2005.
FY2006. At least two appropriations bills were enacted for FY2006 that
contained restrictions on e-government projects — one which was applicable only
to the agencies funded by the bill, and one that applied government-wide. Section
620 of the Science, State, Justice, Commerce, and Related Agencies Appropriations
Act, 2006 (P.L. 109-108), enacted on November 22, 2005, stated that “Any funds
provided in this Act used to implement E-Government Initiatives shall be subject to
the procedures set forth in section 605 of this Act.” Section 605 required that the
Appropriations Committees in both houses of Congress be notified 15 days in
advance of certain reprogrammings of funds.
The Transportation, Treasury, Housing and Urban Development, the Judiciary,
the District of Columbia, and Independent Agencies Appropriations Act for FY2006
(P.L. 109-115, hereinafter the “Transportation/Treasury” appropriation) was enacted
on November 30, 2005. As in the consolidated appropriations bills enacted during
the two previous years, the legislation provided $3 million for the Electronic
Government Fund, and had the same language regarding how the funds should be
transferred to the agencies. In addition, one of the general provisions in the
legislation (Section 705) contained the previous prohibition on funds being
transferred “except pursuant to a transfer made by, or transfer authority provided in,
this Act or any other appropriations Act.” More specifically, Section 841 of the
legislation said the following:
No funds shall be available for transfers or reimbursements to the E-Government
Initiatives sponsored by the Office of Management and Budget (OMB) prior to
15 days following submission of a report to the Committees on Appropriations
by the Director of the Office of Management and Budget and receipt of approval
to transfer funds by the House and Senate Committees on Appropriations.
The OMB report was required to detail (1) the amount proposed for transfer for any
department and agency by program office, bureau, or activity, as appropriate; (2) the
specific use of funds; (3) the relevance of that use to that department or agency and
76
118 Stat. 3257.
77
This language appeared seven times in the 2004 bill and nine times in the 2005 bill.
CRS-23
each bureau or office within, which is contributing funds; and (4) a description on
any such activities for which funds were appropriated that will not be implemented
or partially implemented by the department or agency as a result of the transfer. In
explaining the rationale for this “report and obtain approval” provision, the House
report for the legislation (H.R. 3058) stated the following:
The Committee has expressed serious concerns about the continued forced
implementation of this initiative on Departments and Agencies. Many aspects of
this initiative are fundamentally flawed, contradict underlying program statutory
requirements and have stifled innovation by forcing conformity to an arbitrary
government standard. Most importantly, the implementation of this initiative has
forced departments and agencies and offices and bureaus within each to transfer
funds without the consent of the Committee and has used funds for activities for
which funding was not specifically appropriated.78
The Bush Administration initially opposed this and other provisions in the
appropriations bill requiring congressional committee approval before action by
agencies, saying “they should be deleted or changed to require only notification of
Congress.”79 OMB took the position that transfers of agency funds for e-rulemaking
and other e-government projects were legal under the Economy Act (31 U.S.C. §
1535) because agencies were paying for services rendered.80 The Economy Act states
that the head of an agency or unit may place an order with a unit within the same
agency or another agency for goods or services if “(1) amounts are available; (2) the
head of the ordering agency or unit decides the order is in the best interest of the
United States Government; (3) the agency or unit to fill the order is able to provide
or get by contract the ordered goods or services; and (4) the head of the agency
decides ordered goods or services cannot be provided by contract as conveniently or
cheaply by a commercial enterprise.”
However, in a December 19, 2005, letter to the e-rulemaking executive
committee members, the co-chairs of the executive committee (then, Kimberly
Nelson of EPA and Don Arbuckle of OMB) said that, in light of the congressional
funding restrictions, they and the OMB e-government administrator had decided to
allocate the remaining FY2006 funds to “operate and maintain” the current system
of e-government projects. The letter also indicated that “eRulemaking will suspend
all further agency implementation and development activities, effective beginning
second quarter FY2006.” The letter went on to say that, “As funding is approved and
78
U.S. Congress, House Committee on Appropriations, Departments of Transportation,
Treasury, and Housing and Urban Development, the Judiciary, District of Columbia, and
Independent Agencies Appropriations Bill, 2006, report to accompany H.R. 3058, 109th
Cong., 2nd sess., H.Rept. 109-153 (Washington: GPO, 2006), available at
[http://www.congress.gov/cgi-lis/cpquery/R?cp109:FLD010:@1(hr153)].
79
U.S. Office of Management and Budget, Statement of Administration Policy, H.R. 3058
— Transportation, Treasury, Judiciary, HUD and Related Agencies Appropriations Bill,
FY2006, October 19, 2005, p. 7, available at [http://www.whitehouse.gov/omb/legislative/
sap/109-1/hr3058sap-s.pdf].
80
David Perera, “E-government battered in conference bill,” Government Executive,
November 18, 2005, available at [http://www.govexec.com/story_page.cfm?articleid=32846
&dcn=todaysnews].
CRS-24
received, the PMO [program management office] will resume agency implementation
and system development activities to the extent that resources allow.”81
In January 2006, Karen Evans, OMB’s Administrator for the Office of
Electronic Government and Information, was quoted as saying these appropriations
requirements indicated that “Congress wants better transparency and wants to have
a better understanding of what we’re doing in E-Government,” and went on to say
“We believe they’re entitled to that.”82 She asserted that the Economy Act authorizes
agencies to use funds to contract with other agencies for services.
OMB filed the congressionally required report in January 2006,83 and Ms. Evans
and OMB Deputy Director for Management Clay Johnson III reportedly met with
House and Senate Appropriations Committee staff that month.84 However, OMB
officials said that OMB did not seek release of the restricted e-government funds
from the committees, but rather told the contributing agencies to meet with their
individual appropriations subcommittees to secure the release of the funds (and for
other purposes).85 As a result, OMB said the agencies met with majority and
minority staff in each House and Senate Appropriations subcommittee (other than the
subcommittee for the legislative branch) and worked out an arrangement for the
payments to be made to the lead agencies. These discussions took several months,
though, and the agencies’ contributions for e-rulemaking and several other initiatives
were not allowed to be transferred until the end of June 2006.86 As a result, the erulemaking initiative was essentially unable to proceed with implementation for the
first six months of 2006.87
81
A copy of this letter was posted to the
[http://www.ombwatch.org/article/blogs/entry/1409/38].
OMB Watch
Website
at
82
Ralph Lindeman, “OMB Struggles to Deal With Objections On Capitol Hill to ERegulation Project,” BNA Daily Report for Executives, January 9, 2006, p. A-6.
83
U.S. Office of Management and Budget, Report to Congress on the Benefits of the
President’s E-Government Initiatives, January 6, 2006. To view a copy of this report, see
[http://www.whitehouse.gov/omb/inforeg/e-gov/e-gov_benefits_report_2006.pdf].
84
Ralph Lindeman, “OMB Struggles to Deal With Objections On Capitol Hill to ERegulation Project.”
85
Meeting between the author of this report and OMB officials from the Office of
Information and Regulatory Affairs, the Office of E-government, and the Office of the
General Counsel, September 28, 2007.
86
Jason Miller, “Delay in e-gov funding puts some projects in a bind,” Government
Computer News, July 24, 2006. See [http://www.gcn.com/print/25_21/41449-1.html].
87
According to the e-rulemaking business case for 2008, in May 2006, the e-rulemaking
executive committee voted to change the initiative’s budget cycle from a fiscal year basis
to a calendar year basis “to account for delays in partner Agencies’ transmission of funding
to the eRulemaking Project Management Office (PMO) at the beginning of each [fiscal
year]” and “to insure that the program had sufficient funding while that year’s funding was
being received from each of the twenty-five contributing partner agencies.” See
[http://www.epa.gov/OEI/cpic/by2008/eRulemaking.pdf], p. 5.
CRS-25
In January 2006, a spokesperson for the House Appropriations Committee was
quoted as saying that there was widespread concern among committee members
regarding how the e-government programs had been implemented, noting “OMB
announced it; we never funded it; and they coerced agencies to fund it. We said if
you want to fund these projects, tell us how much and tell us why it is a good idea,
come up with a plan, sell it to Congress, and we will [either] approve it or not.”88
The spokesperson reportedly said that these coercive transfers were particularly
difficult to accept when an agency like the National Park Service, which has a lean
budget for park operations, is “tapped for $1.5 million for e-government projects
without congressional approval.”89 The same person was quoted in another article
as saying OMB was “standardizing and imposing a one-size-fits-all [system] on
agencies that have vastly different missions and objectives.”90
FY2007. Section 839 of the Transportation, Treasury, Housing and Urban
Development, the Judiciary, the District of Columbia, and Independent Agencies
Appropriations Act, 2007 (H.R. 5576) contained the same “report and obtain
approval” requirements. However, this legislation was never enacted. The final
continuing resolution for FY2007 (P.L. 110-5) did not include the restrictions on
transfers and reimbursements from the E-Government Fund, but Section 104 of the
legislation stated that, “Except as otherwise expressly provided in this division, the
requirements, authorities, conditions, limitations, and other provisions of the
appropriations Acts referred to in section 101(a) shall continue in effect through the
date specified in section 106.” Section 101(a) lists nine FY2006 appropriations acts,
including the Transportation/Treasury appropriations act. Section 106 states that the
funds made available were for the period ending September 30, 2007. Therefore, the
“report and obtain approval” requirements that were in effect in FY2006 were also
in effect for FY2007. OMB filed the congressionally required report in February
200791, and OMB officials said that the contributing agencies met with their
appropriations subcommittees to permit release of the funds for FY2007.92
FY2008. As passed by the House and reported in the Senate, the Financial
Services and General Government (FSGG) Appropriations Act, 2008 (H.R. 2829)
provided $2.97 million for the E-Government Fund — $2.03 million less than the
President had requested. Section 738 of the bill had the same “report and obtain
approval” provisions restricting transfers and reimbursements to the e-government
initiatives as were in P.L. 109-108 for FY2006. Also, the House report on the bill
stated the following:
88
Jason Miller, “OMB delivers report to better sell e-government,” Government Computer
News, January 9, 2006.
89
Ibid.
90
Cindy Skrzycki, “Document Portal Sticks on Funding,” Washington Post, January 10,
2006, p. D-1.
91
To view a copy of this report, see [http://www.whitehouse.gov/omb/egov/documents/
FY07_Benefits_Report.pdf].
92
Meeting between the author of this report and OMB officials from the Office of
Information and Regulatory Affairs, the Office of E-government, and the Office of the
General Counsel, September 28, 2007.
CRS-26
The Committee notes that it continues a government-wide general provision that
precludes the use of funds for the “e-Government” initiative prior to consultation
with and approval by the Committee on Appropriations. The Committee
continues to be concerned about OMB using this initiative to force its
management priorities on agencies that would otherwise choose different
approaches to serving the public and other government agencies that are better
tailored to meet the needs of their customers and meet their statutory
requirements. The Committee urges OMB and all agencies to work directly with
the individual appropriations subcommittees in advance of recommending
e-Government transfers so that approved worthy initiatives can move forward
without disruption.93
The House report also said:
The Committee again does not include a general provision proposed in the fiscal
year 2008 budget request allowing the Office of Management and Budget (OMB)
to use $40,000,000 of surplus funds in the General Supply Fund to finance
OMB’s list of “e-Gov” initiatives across government. The Committee refuses to
relinquish oversight of the development and procurement of information
technology projects of the various agencies under its jurisdiction.94
Ultimately, the FSGG legislation was included in H.R. 2764, the Consolidated
Appropriations Act, 2008 (P.L. 110-161). One of the government-wide general
provisions of the act states the following:
SEC. 737. (a) For fiscal year 2008, no funds shall be available for transfers or
reimbursements to the E-Government initiatives sponsored by the Office of
Management and Budget prior to 15 days following submission of a report to the
Committees on Appropriations by the Director of the Office of Management and
Budget and receipt of approval to transfer funds by the House and Senate
Committees on Appropriations.
(b) Hereafter, any funding request for a new or ongoing E-Government initiative
by any agency or agencies managing the development of an initiative shall
include in justification materials submitted to the House and Senate Committees
on Appropriations the information in subsection (d).
(c) Hereafter, any funding request by any agency or agencies participating in the
development of an E-Government initiative and contributing funding for the
initiative shall include in justification materials submitted to the House and
Senate Committees on Appropriations — (1) the amount of funding contributed
to each initiative by program office, bureau, or activity, as appropriate; and (2)
the relevance of that use to that department or agency and each bureau or office
within, which is contributing funds.
(d) The report in (a) and justification materials in (b) shall include at a minimum
— (1) a description of each initiative including but not limited to its objectives,
93
U.S. Congress, House Committee on Appropriations, Financial Services and General
Government Appropriations Bill, 2008, report to accompany H.R. 2928, 110th Cong., 1st
sess., H.Rept. 110-207 (Washington: GPO, 2007), p. 36.
94
Ibid., p. 68.
CRS-27
benefits, development status, risks, cost effectiveness (including estimated net
costs or savings to the government), and the estimated date of full operational
capability; (2) the total development cost of each initiative by fiscal year
including costs to date, the estimated costs to complete its development to full
operational capability, and estimated annual operations and maintenance costs;
and (3) the sources and distribution of funding by fiscal year and by agency and
bureau for each initiative including agency contributions to date and estimated
future contributions by agency.
(e) No funds shall be available for obligation or expenditure for new
E-Government initiatives without the explicit approval of the House and Senate
Committees on Appropriations.
In response to a news report about these requirements,95 OMB said “Provisions
in the Act that purport to require congressional committee or individual leaders’
approval prior to execution of the law shall be construed as calling solely for
notification, as any other construction would be inconsistent with the principles
enunciated by the Supreme Court of the United States in INS vs. Chadha.”96 OMB
also emphasized that the funds provided by the agencies are not transfers, but instead
are “reimbursable obligations as authorized under the Economy Act (31 U.S.C.
Section 1535) where agencies provide fees for services rendered.” In addition, OMB
said that while it “provides recommendations and guidance on processes to follow
when creating reimbursement agreements, ultimately it’s the agencies who determine
the appropriate manner in which E-Gov activities are reimbursed.” Finally, OMB
said that the E-Government Fund “was never designed to fully fund the Presidential
E-Government initiatives,” and instead has been used to “initiate additional
government-wide initiatives (e.g., Lines of Business), support ancillary efforts such
as IPv6, and help implement legislative requirements (e.g., Federal Funding
Accountability and Transparency Act of 2006).”
Legal Authority for Transfers. Congressional appropriators have been
quoted as saying that transfers of agency appropriations to pay for e-rulemaking and
95
Ralph Lindeman, “Lawmakers Seek to Retain Tight Reins Over Agency Spending for EGovernment,” BNA Daily Report for Executives, Dec. 19, 2007, p. A-19.
96
E-mail from Karen Evans of OMB to Ralph Lindeman of BNA, Dec. 21, 2007, as reported
in Ralph Lindeman, “OMB Issues FY2008 Report to Congress On Benefits of 24 EGovernment Programs,” BNA Daily Report for Executives, Feb. 15, 2008, p. A-25. The
constitutionality of such requirements is open to question, particularly in the wake of the
Supreme Court’s decision in INS v. Chadha (462 U.S. 919, 942 fn. 13 (1983)), which struck
down as unconstitutional the congressional practice of subjecting various executive branch
actions to a legislative veto. As pointed out in CRS Report RL33667, Presidential Signing
Statements: Constitutional and Institutional Implications, by T.J. Halstead, “While
Congress and its committees may not anticipate formal legal compliance with such
provisions and often do not expect to be able to enforce them, pragmatic political
considerations oftentimes result in substantive acquiescence by the agencies involved. In
essence, the passage of legislative veto provisions subsequent to Chadha constitutes an
attempt by Congress to leverage informal compliance from executive agencies, the implicit
message being that the affected agency may face difficulties in the legislative, oversight or
budgetary processes if it does not accede to congressional will in this context.”
CRS-28
other collaboratively funded e-government projects are illegal.97 GAO is one
authoritative source of information regarding the propriety of transferring
appropriated funds. Congress has charged the Comptroller General with settling the
accounts of the United States (31 U.S.C. § 3526), and has directed the Comptroller
General to investigate all matters related to the receipt, disbursement, and use of
public money (31 U.S.C. § 712(1)). According to GAO, the decisions of the
Comptroller General are conclusive on the executive branch (31 U.S.C. § 3526(d)),
but executive agencies are responsible for implementing and enforcing those
decisions.
Representatives from GAO’s Office of the General Counsel told CRS that they
had not rendered an opinion on whether the transfer of appropriated funds for erulemaking or any of the collaboratively-funded e-government projects was
permissible under the Economy Act or otherwise, and said GAO could render an
opinion only pursuant to a congressional request or a request from an agency.98
GAO’s Principles of Federal Appropriations Law defines a “transfer” as the shifting
of funds between appropriations, and states that all transfers (whether within an
agency, between agencies, or to a working fund) require statutory authority.99 The
Principles also state the following:
In a few instances, the “pooling” of portions of agency unit appropriations has
been found authorized where necessary to implement a particular statute....
However, pooling that would alter the purposes for which funds were
appropriated is an impermissible transfer unless authorized by statute. E.g.,
B-209790-O.M., March 12, 1985. It is also impermissible to transfer more than
the cost of the goods or services provided to an ordering agency. 70 Comp. Gen.
592, 595 (1991).
As discussed earlier in this report, in 2004, Kimberly Nelson, the co-chair of the erulemaking initiative at the time, said that agencies’ contributions to the initiative
prior to migration into FDMS were for “start-up and development work,” and said
that a separate user-fee approach would be developed for ongoing operations and
maintenance.100
97
Daniel Pulliam, “E-gov projects again face cuts on Capitol Hill,” GovExec.com, June 19,
2006, available at [http://www.govexec.com/dailyfed/0606/061906p1.htm].
98
Telephone conversation with Thomas Armstrong and Hannah Laufe, Office of the General
Counsel, U.S. Government Accountability Office, September 10, 2007.
99
U.S. Government Accountability Office, Office of the General Counsel, Principles of
Federal Appropriations Law, Third Edition, Volume I, GAO-04-261SP, January 2004, p. 224. See also 31 U.S.C. § 1532, which provides that “[a]n amount available under law may
be withdrawn from one appropriation account and credited to another or to a working fund
only when authorized by law.” According to GAO, an unauthorized transfer would also
violate 31 U.S.C. § 1301(a), which prohibits the use of appropriations for other than their
intended purpose.
100
Testimony of Kimberly T. Nelson, Assistant Administrator for Environmental
Information and Chief Information Officer, Environmental Protection Agency, in U.S.
Congress, House Committee on Government Reform, Federal Government Management of
Information Technology, hearings, 108th Cong., 2nd sess., July 21, 2004.
CRS-29
The Economy Act reflected Congress’ belief that private industry should not be
called upon to do “what government agencies can do more cheaply for each other,”
and that federal agencies should turn to other agencies who are “especially equipped
to do the work.”101 Orders were permitted only to agencies “in a position to supply
or equipped to render” the goods and services requested. Originally, the Economy
Act did not authorize the transfer of funds from one agency to another for the purpose
of performing the work by contract.102 (As noted previously in this report, in 2003,
EPA contracted with Lockheed Martin Corporation for the construction of FDMS.)
In 1982, however, Congress changed the law to allow agencies to obtain goods and
services by contract in fulfilling orders under the Economy Act.103 Among other
changes made to the Act in 1982 was a provision added to 31 U.S.C. § 1535(c) that
GAO said was:
designed to preclude use of the Economy Act to avoid legal restrictions on the
availability of appropriated funds. Originally recommended by GAO, it
“prevents the ordering agency from accomplishing under the guise of an
Economy Act transaction, objects or purposes outside the scope of its authority.”
B-2594999, August 22, 1995, at 8.104
Since Congress has required OMB to obtain the Appropriations Committees’
approval before e-government transfers are made, it does not appear that (at least as
a practical matter) the Economy Act can substitute for that approval.105 OMB
officials told CRS that they viewed the funds provided to the lead agencies for the egovernment initiatives (i.e., to EPA in the e-rulemaking effort) as “reimbursements”
for services rendered, not transfers. Nevertheless, they said the annual report helped
improve the transparency of the projects, and have encouraged agencies to meet with
their appropriations subcommittees to ensure that the reimbursements could be made.
OMB officials said that agencies contributing to the e-rulemaking initiative had
received a “service” from the Regulations.gov website in that all of their regulations
101
H.R. Ref No. 1126, 72nd Cong., 1st sess. (1932).
102
See, for example, U.S. General Accounting Office, “To the Acting Secretary of the
Navy,” B-7071, 19 Comp. Gen. 544 (1939).
103
P.L. 97-332, 96 Stat. 1622.
104
U.S. General Accounting Office, Office of the General Counsel, Principles of Federal
Appropriations Law, Second Edition, Volume IV, GAO-01-179SP, March 2001, pp. 15-72.
105
The constitutionality of such requirements are open to question, particularly in the wake
of the Supreme Court’s decision in INS v. Chadha (462 U.S. 919, 942 fn. 13 (1983)), which
struck down as unconstitutional the congressional practice of subjecting various executive
branch actions to a legislative veto. As pointed out in CRS Report RL33667, Presidential
Signing Statements: Constitutional and Institutional Implications, by T.J. Halstead, “While
Congress and its committees may not anticipate formal legal compliance with such
provisions and often do not expect to be able to enforce them, pragmatic political
considerations oftentimes result in substantive acquiescence by the agencies involved. In
essence, the passage of legislative veto provisions subsequent to Chadha constitutes an
attempt by Congress to leverage informal compliance from executive agencies, the implicit
message being that the affected agency may face difficulties in the legislative, oversight or
budgetary processes if it does not accede to congressional will in this context.”
CRS-30
are available for comment in one place. They said they understood that some
agencies may feel as if they had not received sufficient value for their contributions
to date, particularly those agencies that had not migrated into FDMS and were not
receiving many comments via Regulations.gov. However, they pointed out that, for
the past two years, agencies have been required to vote on approval of the initiatives’
budgets and business cases, which include the amounts of each agency’s
contributions, and that more than 80% of the agencies have approved those
documents — thereby indicating that the agencies believe they are receiving good
value for their e-government contributions.106 Other explanations for these votes are
possible. For example, an official familiar with the practice indicated that agencies
are likely to find it difficult to oppose the Administration’s position in these votes,
and said that doing so could adversely affect the agencies’ ability to meet objectives
established for them under the President’s Management Agenda.
Effect of Funding Difficulties on Implementation. The implementation
of the e-rulemaking initiative has been affected by many factors, including
difficulties in meeting the needs of diverse agencies and resistence to change from
agencies accustomed to established modes of operation. The description of the
American Bar Association group that is examining the initiative said the following:
The stop-and-start nature of funding has caused delays in (i) making technical
improvements crucial to the site’s functionality; (ii) adding agencies and
documents to the system; and (iii) developing software tools and other
enhancements that would make the regulations.gov interface more user-friendly
and allow agencies to explore web-based methods for increasing the nature and
quality of participation in rulemaking.107
Structure of the Government-wide Docket
As noted earlier in this report, e-rulemaking in the federal government began
primarily as a very decentralized effort, with individual departments and agencies
developing strategies to meet their particular needs. The E-Government Act requires
“agencies” to ensure the development of one or more electronic rulemaking dockets,
but does not require either a centralized or a decentralized docket system. The Bush
Administration’s e-rulemaking initiative, particularly its docket management system,
is highly centralized, with a single system to replace agency-specific systems.
As mentioned previously, from 2002 through 2004, OMB, EPA, and agency
officials reportedly considered three government-wide docket structure options: (1)
a centralized design in which all standard hardware and software components are
centrally located, and all existing agency systems are retired when agencies are
placed on the system; (2) a “tiered” design that uses a centralized system, but with
hardware and software also installed at different agency sites; and (3) a “distributed”
design that integrates a centralized, government-wide system with existing agency
106
Meeting between the author of this report and OMB officials from the Office of
Information and Regulatory Affairs, the Office of E-government, and the Office of the
General Counsel, September 28, 2007.
107
Available at [http://ceri.law.cornell.edu/documents/erule-committee-description.pdf].
CRS-31
systems using customized software (middleware) to permit interconnectivity.
Although the May 2002 Excella study suggested that the centralized approach was
best, the ultimate decision was reportedly based on three other contractor
assessments, which GAO said “generally found that the centralized design was most
cost effective, had the lowest risk for deployment and support instability, was the
most secure, and was most likely to deliver the breadth and functionality sought by
agencies and the public.”108
The decision to construct a single, centralized rulemaking docket remains
controversial among some agencies and other observers, and has affected each of the
other implementation issues discussed in this report (i.e., funding, costs and benefits,
and functionality). The most obvious effect is that agencies that took the initiative
in the 1990s and developed their own electronic docket systems will have to shut
those systems down — which appears to be the source of at least some agency
resistence. Relatedly, some agency officials have reportedly said that the centralized
docket has made it difficult for them to adapt their own rulemaking cultures to the
new system.109 Also, participants at a conference on e-rulemaking held at George
Washington University in June 2004 said that the construction of a single system that
is “all things to all people” would produce a “lowest common denominator” system
that rulemaking agencies and stakeholders alike would reject or ignore.110 While the
centralized approach has certain inherent advantages, it also has certain inherent
costs. As one author put it, “the centralizing tendency reflected in the federal docket
management system and Regulations.gov has benefits in the form of economies of
scale and making it easier for citizens to track and comment on any pending
regulations, but it also reduces the chances that agencies will experiment with erulemaking initiatives on their own.”111
The decision to develop a single, centralized rulemaking docket and eliminate
agency-specific “legacy” systems differs from a more decentralized approach taken
in another Bush Administration effort, the “lines of business” initiative. Some other
e-government initiatives have reportedly been influenced by the lines of business
effort. For example, the Grants.gov project was reportedly supposed to have a single
website for finding and applying for federal grants. However, the initiative was
reportedly later changed to one in which existing agency grants management systems
are made available for other agencies to use.112
Effect on Presidential Power. Some observers have also commented on
the effect that a centralized e-rulemaking system can have on presidential power. For
108
U.S. Government Accountability Office, Electronic Rulemaking: Progress Made in
Developing Centralized E-Rulemaking System, p. 11.
109
Ralph Lindeman, “Structural, Other Flaws Said to Impede Effectiveness of E-Rulemaking
Website.”
110
Ibid.
111
Stuart M. Benjamin, “Evaluating E-Rulemaking: Public Participation and Political
Institutions,” p. 899.
112
Daniel Pulliam, “E-Gov at Five Years, Part Five: Pushing Forward,” GovExec.com,
September 1, 2006, at [http://www.govexec.com/dailyfed/0906/090106eg5.htm].
CRS-32
example, one such commentary said a centralized rulemaking docket developed with
OMB oversight would “dramatize and enhance OMB’s and OIRA’s already central
role” in the rulemaking process.113 The authors went on to say the following:
As agencies become more transparent, they become more transparent to the
President as well as to the public. It used to be that the number of copies of
materials in the docket was limited, and it was physically located at the agency.
Now the docket is immediately available on equal and easy terms to all who want
it, including the President, and politics will give him the incentive to use it.114
Similarly, Stuart W. Shulman of the University of Pittsburgh said “many of the tools
employed by the OMB when it exerts control over federal rulemaking (e.g.,
monitoring, prompting, or early collaboration in drafting proposals) are likely to be
enhanced by seamless IT systems for eRulemaking.”115
Expected Financial Costs and Benefits
At different points in the implementation of the e-rulemaking initiative, EPA
and OMB developed estimates of the expected financial costs and benefits (e.g.,
savings) associated with the federal docket management system. The cost estimates
were consistently in the $18-$22 million range for the development of a single,
centralized rulemaking docket. Estimated savings from the system were expected to
be more than $90 million over three years when compared to allowing agencies to
develop their own electronic dockets. As is the case in any cost-benefit analysis, the
validity and reliability of the results depend on the assumptions underlying the
analysis.
Cost Estimates. The June 2003 draft business case said that the creation of
the “central online docket public commenting system supporting the federal
government regulatory process will cost the federal government approximately $22
million plus $6 million in annual operations and maintenance costs.”116 GAO’s
September 2005 report on the e-rulemaking initiative indicated that the decision to
adopt the centralized docket option was based on three assessments, two of which
concluded that the centralized design would cost between $18.7 million and $20.1
113
Richard G. Stoll and Katherine L. Lazarski, “Rulemaking,” in Jeffrey S. Lubbers, ed.,
Developments in Administrative Law and Regulatory Practice, 2003-2004 (Chicago:
American Bar Association, 2004), p. 160. The authors note that the section of this article
on e-rulemaking was adapted from materials provided by Professor Peter Strauss of
Columbia Law School.
114
Ibid.
115
Stuart W. Shulman, “E-Rulemaking: Issues in Current Research and Practice,”
International Journal of Public Administration, vol. 28 (2005), p. 628.
116
U.S. Environmental Protection Agency, “Draft Capital Asset Plan and Business Case,”
June 23, 2003 pp. 7-8.
CRS-33
million.117 (The third assessment focused on the risk, supportability, and security of
the systems being considered, not cost.)
Benefits Estimates. EPA’s and OMB’s estimates of the financial benefits
of the e-rulemaking initiative appear to have varied over time, as have the
assumptions that underlay those estimates.
December 2002 Estimate. According to a draft “Capital Asset Plan and
Business Case” that was submitted to OMB by EPA in December 2002, the erulemaking project team identified 145 rulemaking agencies and subagencies in the
federal government.118 (This count included multiple subunits within departments
and agencies. For example, USDA accounted for 20 of these agencies.) EPA
concluded that, if each agency (or even half of the agencies) created a docket system
like EPA’s, the cost would be as much as $113 million (not including $250,000 to
$1.3 million in annual maintenance and operating costs for each system). EPA also
said that creating a single, centralized docket system would cost about $21 million
to build (not including $10 million in annual maintenance and operating costs).
Therefore, EPA concluded that the e-rulemaking initiative would save the federal
government $92 million by not allowing separate docket systems to evolve ($113
million minus $21 million), plus another $65 million in lower annual maintenance
fees.
Although it is not clear from the data that EPA presented, the estimated cost for
each agency to build and maintain its own electronic docket system appears to be
based on the presumption that each subunit within a department or agency would
develop its own system. However, large departments and agencies like USDA might
do what DOT and EPA did, and develop a single docket system for each of its
subunits to use. As a result, the cost of department or agency-specific systems would
likely be lower than EPA anticipated, and therefore the expected savings from having
a single system for the federal government as a whole would also be lower.
January/June 2003 Estimate. When Regulations.gov was launched in
January 2003, OMB issued a press release indicating that the creation of a
consolidated e-rulemaking system would save $94 million,119 but OMB did not
explain how that savings estimate was developed. However, the draft “Capital Asset
Plan and Business Case” that was submitted to OMB by EPA in June 2003 appears
to provide some explanation.120 EPA started its analysis by stating that the erulemaking project team had determined that there were at least 312 federal entities
117
U.S. Government Accountability Office, Electronic Rulemaking: Progress Made in
Developing Centralized E-Rulemaking System, p. 11.
118
U.S. Environmental Protection Agency, “Capital Asset Plan and Business Case,”
December 28, 2002, p. 6.
119
U.S. Executive Office of the President, Office of Management and Budget,
“Regulations.gov to Transform U.S. Rulemaking Process and Save Nearly $100 Million.”
120
U.S. Environmental Protection Agency, “Draft Capital Asset Plan and Business Case,”
June 27, 2003, pp. 6-8.
CRS-34
that were involved in the federal regulatory process.”121 (As was the case in the
December 2002 estimate, this count included multiple subunits within departments
and agencies. The 15 cabinet departments accounted for 209 of these entities.
USDA subagencies were counted 34 times, HHS and DOI accounted for 20 entities
each, and EPA offices and regional offices were counted 17 times.) EPA said that
“76 of the 312 federal regulatory agencies” had some type of electronic commenting
system (including those which simply accepted comments by e-mail), and of the 76
agencies, 33 agencies had “Web-enabled” systems.122 DOT’s agencies and offices
(e.g., Office of the Secretary, the Federal Aviation Administration, the Bureau of
Transportation Statistics, and the Bureau of Transportation Statistics/Aviation)
accounted for 14 of the 33 agencies with Web-enabled systems. However, as noted
earlier in this report, all units within DOT have been served by a single electronic
docket system (DMS) since 1998.
EPA said the centralized rulemaking docket system being developed as part of
the e-rulemaking initiative would result in savings or “cost avoidance” of $94 million
over three years by eliminating duplicate systems ($56 million) and annual
maintenance fees ($38 million).123 In developing these estimates, EPA said it
assumed that “Over the next 2 years, 76 non-online agencies do NOT develop their
own Web-based docket systems and 32 legacy system entities CEASE support of
their legacy systems.” It is not clear how EPA arrived at its estimate of 76 agencies
not developing their own systems (since the 76 agencies mentioned previously were
those that already had some type of electronic commenting system). EPA provided
its assumptions of what it would cost to build and maintain new systems, and to
manage a paper docket system, for large, medium, small, and “micro-scaled”
systems. However, it is not possible to replicate EPA’s cost estimates because EPA
did not indicate how many of the 76 agencies fell into each size category.
The 32 “legacy” systems that would no longer be supported appear to have been
drawn from the 33 agencies with “Web-enabled” systems (minus the EPA system,
which would be maintained at the start of FDMS). However, as noted previously, 33
“agencies” with Web-enabled commenting systems is not the same as 33 rulemaking
“systems” that would have to be maintained, since 14 of the 33 agencies (those
within DOT) were on one system (DMS). Also, these systems were described as
commenting systems, not docket systems (although some, such as the one at DOT,
may have also had electronic docket capabilities).
Also, the analysis appears to assume that agencies’ existing electronic or paper
docket systems would be eliminated when the agencies were migrated to the new
centralized docketing system. However, FDMS is being constructed as a “dateforward” system, and will not necessarily include records for rules that are no longer
open for comment. Therefore, to the extent that the agencies are required or desire
to maintain ready access to those records, the agencies may not be able to eliminate
those existing records systems, and the expected savings may not occur.
121
Ibid., p. 7.
122
Ibid., p. 18.
123
Ibid., pp. 7, 30, 37, 54-55.
CRS-35
EPA e-rulemaking officials told GAO that they developed the $94 million
savings estimate prior to the completion of the three contractor assessments described
earlier. They also said there was a lack of data on how much it cost to develop and
operate e-rulemaking systems, so they used information from EPA’s own system and
their “professional judgement” in developing the savings estimate.124
September 2003 Business Case. The September 2003 business case
submitted to OMB, which was characterized to GAO as a final version of the June
2003 document, did not contain an estimate of the savings likely to occur as a result
of the e-rulemaking initiative. Instead, the document simply said that the initiative
“will save taxpayer dollars and make the federal government more efficient by
consolidating redundant docket information technology systems across agencies and
by reducing duplicative spending for these systems.”125 The “overall benefit” of the
centralized docket system was described as “Unifies and simplifies the federal
rulemaking process”; the overall benefit of the distributed and tiered e-rulemaking
options were described as “None.”126
The document also differed from its predecessors in other ways. For example,
EPA said there were 173 federal entities involved in the rulemaking process (down
from 312 in the June 2003 draft), and said that at least 42 of these agencies had some
type of online commenting system (up from 33 in the previous draft).
September 2004 Business Case. In its September 2004 business case,
EPA returned to the $94 million savings estimate in its June 2003 document, and
again said that the figure included $56 million for “eliminating duplication of
systems and $38 million for annual maintenance fees.”127 EPA also again said that
the transition from paper to electronic dockets and the consolidation of reading rooms
“could result in government-wide cost avoidance of approximately $58M that
includes staff and space reductions.”
More Recent Efforts to Show Cost Savings. On August 8, 2006, Karen
Evans, OMB Administrator of E-Government and Information Technology, sent a
memorandum to agency chief information officers requesting that the agencies
develop information to assess any costs savings associated with e-government and
lines of business initiatives.128 Specifically, the memorandum said agencies should
(1) identify IT investments being modified, replaced, or retired as a result of an
initiative’s implementation, (2) develop baseline cost estimates for each investment
124
U.S. Government Accountability Office, Electronic Rulemaking: Progress Made in
Developing Centralized E-Rulemaking System, p. 12.
125
U.S. Environmental Protection Agency, “Capital Asset Plan and Business Case,”
September 8, 2003, pp. 8, 25.
126
Ibid., pp. 36-38.
127
U.S. Environmental Protection Agency, “Capital Asset Plan and Business Case”,
September 13, 2004, pp. 11, 18-19.
128
Karen S. Evans, Administrator, E-Government and Information Technology, “Cost
Savings Achieved Through E-Government and Line of Business Initiatives,” August 8,
2006, available at [http://www.whitehouse.gov/omb/egov/documents/m06-22.pdf].
CRS-36
identified, and (3) measure the actual costs of those investments on an ongoing basis.
The memorandum went on to say that OMB anticipated requesting actual cost
savings and cost avoidance in November 2006 for use in OMB’s report to Congress
on the benefits of the e-government initiatives.
OMB’s Report to Congress on the Benefits of the President’s E-Government
Initiatives, Fiscal Year 2007 asserted that the e-rulemaking initiative would result in
“lowered costs,” but provided no details on how those savings would be achieved.
Instead, the report noted the number of “hits” and comments the website had
received, the number of documents posted, and the number of pages downloaded by
the public. The agency-specific e-rulemaking sections also had little in the way of
specific cost savings attributable to the initiative.129 Notably, each agency had
exactly the same text in their sections of the report, saying that the agency “will
benefit in savings through their participation and reliance on FDMS and
Regulations.gov,” and that “budget cost savings and cost avoidance will be the
results” of the agency’s transition to FDMS and Regulations.gov.130 None of the
agencies quantified those results other than noting the number of Federal Register
notices and other documents that they had posted on Regulations.gov and the number
of comments received through that system.
OMB’s Report to Congress on the Benefits of the President’s E-Government
Initiatives, Fiscal Year 2008 said that the e-rulemaking program provides several
“process benefits” (e.g., agency management and dissemination of regulatory
information) as well as “cost avoidance benefits over traditional baseline paper
processes to a level of $30 million over five years.”131 The report went on to say that,
based on calculations by an “independent economist” who was hired by the erulemaking program, the centralized docket system “is estimated to save a range of
$106 - $129 million over five years” when compared to more decentralized systems.
The agency-specific sections again had virtually identical language, and again noted
the number of documents posted in Regulations.gov. Some of the agency-specific
sections cited estimates by the above-mentioned economist, but others did not.
Some of the anticipated five-year savings estimates seem high, but EPA did not
respond to requests from CRS for further information.132 Notably, the Department
129
Office of Management and Budget, Report to Congress on the Benefits of the President’s
E-Government Initiatives, Fiscal Year 2007, available at [http://www.whitehouse.gov/
omb/egov/documents/FY07_Benefits_Report.pdf].
130
These two phrases appeared 19 and 20 times, respectively, in the OMB report.
131
Office of Management and Budget, Report to Congress on the Benefits of the President’s
E-Government Initiatives, Fiscal Year 2008, p. 8, available at
[http://www.whitehouse.gov/omb/egov/documents/FY08_Benefits_Report.pdf].
132
For example, the report (p. 42) stated that the economist hired by the e-rulemaking office
concluded that, by using FDMS, the Department of Commerce (DOC) would “avoid costs
of nearly $17 million over having the Department independently create alternative options
that would provide similar services.” However, DOC officials told CRS that construction
of the department’s own electronic rulemaking docket would cost about $2 million, and
maintenance would cost about $500,000 per year. As indicated previously, by FY2008,
DOC had contributed nearly $3 million to fund the construction of FDMS. Therefore, it is
(continued...)
CRS-37
of the Interior’s section stated that while it had championed the development of
FDMS, “initial costs of development and ultimate implementation to FDMS have
been more than DoI would normally expend for its publication of rulemakings
through a paper-based system or through minimal use of an electronic comment
system for 2 bureaus.”133
Ultimately, the benefits of the e-rulemaking initiative are likely to differ by
federal agency. In August 2006, Kimberly Nelson, by then the former co-chair of the
e-rulemaking executive committee, was quoted as saying that agencies without
electronic docketing systems at the start of the initiative could have spent
considerably more to build their own systems than the cost of buying into FDMS.
On the other hand, she said agencies that had such systems already (e.g., DOT and
FDA) “may not see significant benefits or savings” and “will wind up paying more
than before, but the tradeoff is [that] the citizens are better served.”134
Functionality of Regulations.gov
Several issues regarding the functionality of FDMS within Regulations.gov have
been raised by different observers, including the general navigability of the website,
the consistency and completeness of the data, whether the system allows users to
adequately search existing dockets, and whether certain functions available in
agencies’ electronic dockets will still be available in FDMS. Each of these issues is
discussed below.
The design of FDMS has long been a subject of interest to scholars of
rulemaking. For example, in November 2004, a group of 55 scholars wrote to the
administrators of OIRA and the Office of Electronic Government and Information
Technology within OMB to suggest three principles to guide the design of FDMS:
(1) consistency in data (both across agencies and over time), (2) flexibility in the use
of docket fields for searches, and (3) ease of access.135 They also enumerated specific
data fields that FDMS should contain, and preferred types of search and download
capabilities.136
132
(...continued)
not clear how FDMS would save DOC $17 million over five years when compared to the
cost of constructing its own electronic docket.
133
Ibid., p. 105.
134
Rob Thomeyer and Jason Miller, “The test of e-gov: efficiency and effectiveness,”
Government Computer News, August 21, 2006, available at [http://www.gcn.com/print/25_
25/41722-1.html].
135
Letter to Karen S. Evans and John D. Graham, November 11, 2004, available at
[http://aei-brookings.org/admin/authorpdfs/redirect-safely.php?fname=../pdffiles/phpXZ.
pdf].
136
For a discussion of other e-rulemaking docketing issues (e.g., scanning and archiving of
materials, copyright concerns), see Jeffrey Lubbers, A Guide to Federal Agency Rulemaking,
pp. 229-234.
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Navigability — 2007. As of October 2007, Regulations.gov had two main
areas — one allowing users to “Submit Comments” on rules open for public
comment, and one to allow users to “Search Documents.” Within the “Search
Documents” box, users were required to select what documents to search (i.e., only
documents accepting comments or all documents); and were allowed to narrow the
search by federal department or agency; document type (rules, proposed rules,
notices, or “other”); and category. (Although the “Category” section was described
as “optional,” failure to identify a category prevented the user from proceeding.) The
usable category options were “Docket Title”, “Abstract”, “Document ID”, “Subject”,
“Legacy ID”, “Submitter Info”, and “Docket ID”. It was not clear what several of
these categories mean (e.g., the difference between “Document ID” and “Docket ID,”
or what “Legacy ID” refers to), or which users would be likely to have the requested
identification numbers. An “Advanced Search” option allowed users to search by
such factors as comment tracking number, document title or identification number,
and Code of Federal Regulation title. A separate set of banner headings allowed
users to “Search for Dockets” or “Search for Documents.”
To test the system, CRS attempted to locate information on a proposed rule
issued by the U.S. Agency of International Development (USAID) in July 2007 that
would exempt a new “Partner Vetting” system of records from the Privacy Act.137
The results differed depending on how the search was conducted. Using the “Search
for Dockets” banner heading, identifying USAID as the issuing agency, searching for
documents after July 1, 2007, and putting “partner vetting” in the keyword box
yielded “no results.” However, using the “Search Documents” function, identifying
USAID, identifying the “Subject” category, and putting “partner vetting” in the
associated box yielded two dockets, one of which contained the subject rule and
related documents and comments. Two other items were of note: (1) the list of
agencies in the “Search Documents” function varied from one search to another
(sometimes USAID was listed and sometimes it was not), and (2) the “Back” button
did not allow the user to return to the previous page.
CRS also attempted to locate information on an EPA rule changing the emission
standards for mercury. Using the “Search Documents” function, identifying EPA,
using the “Subject” category, and putting “mercury” in the associated box led to a list
of possible dockets, the first of which was for a January 2004 proposed rule.138 The
docket contained a total of 6,902 documents across 277 pages of material. No index
was provided, and the contents were not organized by type of document (e.g., agencygenerated documents versus public comments) or chronologically.
Navigability — 2008. As of May 2008, the initial page of Regulations.gov
had three main areas — “Search,” “Comment or Submission,” and “More Search
Options.” CRS attempted to locate the same “Partner Vetting” rule by putting the
137
U.S. Agency for International Development, “Privacy Act of 1974, Implementation
Exemptions,” 72 Federal Register 39768, July 20, 2007.
138
U.S. Environmental Protection Agency, “Proposed National Emission Standards for
Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for
New and Existing Stationary Sources: Electric Utility Steam Generating Units; Proposed
Rule,” 69 Federal Register 4651, January 30, 2004.
CRS-39
term “partner vetting” in the search box, which yielded 45 documents.139 On that
page, CRS had the option of narrowing the search in various ways, including by type
of document (e.g., notices, proposed rules, and final rules). Selecting “proposed
rules” narrowed the results to two documents, one of which was the July 2007
proposed rule. Selecting the associated docket identification number permitted
access to all related documents. CRS then had the option of sorting those documents
by date of posting (e.g., those posted within the previous nine months) and by various
categories — e.g., the rule itself, notices, public submissions, and supporting
materials. However, within those categories, no additional information was
provided. For example, the public submissions were identified only by number and
date of posting; if looking for a particular comment, a searcher would have to open
each file, or go back and add additional information to the search parameters. In
addition to these procedures, users can opt to use the search procedures that were
available in October 2007, or search in other ways (e.g., all rules currently open for
comment). Throughout this process, the “Back” button allowed researchers to return
to the previous page.
CRS searches for the mercury rule proved somewhat less successful. Entering
the word “mercury” in the search box yielded 17,485 documents, and narrowing the
search to rules issued by EPA still resulted in 16,061 documents. Focusing on
“proposed rules” narrowed the results to 303 documents, but closer inspection
revealed that many of the listed documents were not proposed rules (e.g., they were
notices of public hearings and final rules). Adding additional terms to the search box
(e.g., “emission standards” and “electric utility”) and again limiting the search to
EPA proposed rules ultimately allowed CRS to locate the rule identified in October
2007, and then to sort the materials in the docket by document type (e.g., supporting
materials or public comments) and by date of submission.
Consistency and Completeness of Data. Another set of concerns
expressed about FDMS is a reported lack of consistency in how key data are
submitted into the system. The Regulations.gov website states that “it is up to each
Department or Agency to determine what information is made available on the site.”
E-rulemaking program officials have said that agencies were given flexibility in how
information is submitted to the system to accommodate differing agency rulemaking
practices and legacy systems. Robert Carlitz, director of Information Renaissance,
said: “It’s chaotic, there’s no standardization,” and said e-rulemaking program
managers provided a few standard fields but allowed agencies to add any additional
fields they wanted. He said this “led to a certain amount of anarchy because you can
have the same information submitted in different ways by the agencies.”140 At a
minimum, critics argue, OMB and EPA could have required agencies to include the
same types of descriptors used in relation to other regulatory requirements (e.g.,
whether the rule is “significant” or “economically significant” under Executive Order
12866, and therefore must be reviewed by OMB before being published in the
Federal Register). Other relevant information that some argue could be included
139
Putting the term “partner vetting” within quotation marks yielded 45 documents, but not
using the quotation marks yielded 182 documents.
140
Ralph Lindeman, “Structural, Other Flaws Said to Impede Effectiveness of E-Rulemaking
Website,” BNA Daily Report for Executives, March 30, 2007, p. C-5.
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fairly easily (because of other requirements) include the rules’ legal authorities,
statutory deadlines, and anticipated impact on small entities. Carlitz has also said
that there appeared to be little or no effort to ensure the accuracy of the information
provided, noting there were “misspellings, invalid dates, blank fields, and
inconsistencies.” Other observers have also noted the lack of uniformity in agency
practices, noting that “different types of documents in similar rulemaking
proceedings may be posted on the Web site depending on the agency involved.”141
Search Capabilities. Other concerns previously centered on the limited
search capability in FDMS. In October 2007, the system only allowed searches
within certain data fields (e.g., the titles of documents), not throughout the text of the
documents in the rulemaking docket. Barbara Brandon, a law librarian at the
University of Miami School of Law, was quoted as saying that, if the system is not
going to provide full text searching, “then it has really been oversold.”142 She pointed
out that the EPA docket system that the agency had before migrating to FDMS had
full text searching, but FDMS did not. Cary Coglianese, a professor of law and
political science at the University of Pennsylvania, said the lack of full-text search
capability was “surprising” and, in the age of Google, “not up to the state of the
art.”143 EPA officials said they were aware of this limitation, and said that full-text
searching would likely be added, but must first be approved by a “change control
board” (a group of agency IT and rulemaking representatives) and the 25-member
executive committee. By March 2008, Regulations.gov permitted full-text searching
of documents.
Loss of Certain Capabilities. At one of the public meetings in August
2004, a deputy assistant administrator in EPA’s Office of Environmental
Information, was quoted as saying that FDMS would provide at least the same utility
as existing agency-specific electronic dockets, and reportedly said “No agency will
lose any capability when we move to this system.”144 However, based on information
provided by federal agencies and others, certain functions that had been available
through the agency systems do not appear to be available on FDMS.
For example, in its 2003 report on the uses of IT in federal rulemaking agencies,
GAO noted that DOT’s Docket Management System (DMS) had:
a “list serve” that permits members of the public to receive e-mail notifications
when government documents are entered into the department’s docket
management system. Subscribers are instructed to create a “profile” that
identifies the user by e-mail address and to create “agents” (automatic document
hunters) to send search results to the subscribers’ e-mail addresses. Subscribers
141
Ralph Lindeman, “Lack of Uniformity in Agency Practices Hampers E-Rulemaking
Effort, Expert Says,” BNA Daily Report for Executives, October 26, 2007, p. A-18, quoting
Cynthia Farina of Cornell University’s E-Rulemaking Initiative.
142
Ralph Lindeman, “Structural, Other Flaws Said to Impede Effectiveness of E-Rulemaking
Website,” BNA Daily Report for Executives, March 30, 2007, p. C-5.
143
144
Ibid.
“Access to Public Dockets, Other Information, Slated for Major Improvements in Early
2005,” BNA Daily Report for Executives, August 13, 2004, p. A-30.
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tell the agents what to look for and every 24 hours it will retrieve a list of
documents matching the criteria entered. If a particular DOT agency is selected
(e.g., FAA), the subscriber will receive notifications for all of that agency’s
dockets. Notifications can be limited in several other ways as well (e.g., only
dockets with federalism implications, tribal implications, or small entity
implications).145
However, when DOT announced in September 2007 that it was migrating to FDMS,
the department noted that the FDMS list serve:
will only allow users to sign up for specific dockets. Users will not be able to
sign up for categories of dockets, such as all FMCSA rulemakings. Users will
also not be able to sign up for the subject areas currently allowed in DMS
[DOT’s own docket system] (e.g., federalism). Some features that were available
in DMS will not work in FDMS. For example, the list serve in DMS can search
our Rulemaking Management System (RMS) for data necessary to respond to a
list serve request. FDMS cannot search RMS for data because it is not allowed
to go behind the DOT firewall.146
It is not clear whether other agencies with their own electronic dockets will also lose
certain capabilities when migrating to FDMS.
Effects on Public Participation
Questions have also been raised regarding whether e-rulemaking is meeting its
originally intended purposes — to “open up” the rulemaking process and allow more
public participation (both in terms of number of participants and types of
participants), to allow participation in a more meaningful way, and as a result, to
improve the quality of the rules developed through that process. In January 2003,
OMB said that Regulations.gov would “make the federal rulemaking process more
accessible and enable citizens and small businesses to quickly access and comment
on hundreds of open proposed rules from all federal agencies.”147
From its earliest days of implementation, Regulations.gov has demonstrated its
potential in this regard. GAO reported in 2003 that Regulations.gov did a better job
of identifying rules available for comment than agency websites, and was more likely
to allow the public to provide electronic comments.148 However, GAO also reported
that agencies infrequently mentioned Regulations.gov in their proposed rules,
perhaps explaining why so few comments were being received through the website.
145
U.S. General Accounting Office, Electronic Rulemaking: Efforts to Facilitate Public
Participation Can Be Improved (GAO-03-901), September 17, 2003, p. 17.
146
U.S. Department of Transportation, Office of the Secretary, “DOT’s Migration to the
Federal Docket Management Systems (FDMS),” 72 Federal Register 54316, September 24,
2007.
147
U.S. Executive Office of the President, Office of Management and Budget,
“Regulations.gov to Transform U.S. Rulemaking Process and Save Nearly $100 Million,”
January 23, 2003.
148
U.S. General Accounting Office, Electronic Rulemaking: Efforts to Facilitate Public
Participation Can Be Improved, GAO-03-91.
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As discussed earlier in this report, a review of proposed rules published in August
2007 indicates that agencies are more frequently mentioning the Regulations.gov
website as a commenting option. Nevertheless, it still appears that relatively few
comments have been coming to the agencies via Regulations.gov compared to other
methods of commenting.
Regulations.gov may still be of value, however, in that the FDMS element of
the Regulations.gov website can permit the public to obtain information about federal
rulemaking (e.g., agencies’ cost-benefit and risk analyses, and the comments of
others) that was sometimes difficult to obtain — particularly in agencies that did not
already have electronic dockets. The utility of FDMS in this regard, though, is
directly proportional to the reliability of its information and the ease with which users
can navigate its holdings. Comments from some familiar with online docket systems
suggest that certain improvements in these areas are needed, particularly with regard
to the consistency of information, searching, and overall navigability.
Literature on E-rulemaking. The professional literature on e-rulemaking
was initially highly optimistic about the effects that e-rulemaking could have on
rulemaking and democratic government. For example, one 1998 article suggested
that the Internet would “change everything” about public participation in federal
rulemaking.149 Other authors advocated that agencies go beyond simple commenting
and docket systems, and develop (at least for important rules) “electronic dialogues”
between those commenting on rules and agency officials.150
More recent observations have been less optimistic, and some have been
cautionary. For example:
!
One author entitled his article “The Internet Still Might (but
Probably Won’t) Change Everything,” and concluded that a series
of focus groups suggested that e-rulemaking “may simply digitize
established paper-based processes.”151
!
Another article by the same author indicated that, while erulemaking “may usher in a new era of more inclusive, deliberative,
and legally defensible rulemaking, it may be just as likely to
reinforce existing inequalities, or worse, create new pitfalls for
149
Stephen Johnson, “The Internet Changes Everything: Revolutionizing Public
Participation and Access to Government Information Through the Internet,” Administrative
Law Review, vol. 50 (1998), pp. 277-337.
150
Thomas C. Beierle, “Discussing the Rules: Electronic Rulemaking and Democratic
Deliberation,” Discussion Paper 03-22, Resources for the Future, April 2003, available at
[http://www.rff.org/Documents/RFF-DP-03-2.pdf].
151
Stuart W. Shulman, “The Internet Still Might (but Probably Won’t) Change Everything:
Stakeholder Views on the Future of Electronic Rulemaking,” available at
[http://erulemaking.ucsur.pitt.edu/doc/reports/e-rulemaking_final.pdf].
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citizens wishing and entitled to influence the decision-making
process.”152
!
At a December 2005 conference on e-rulemaking that was sponsored
by the House Committee on the Judiciary’s Subcommittee on
Commercial and Administrative Law, Jeffrey Lubbers of American
University’s Washington College of Law said e-rulemaking may
have the unintended consequence of giving industry groups and
other commenters more influence over agencies’ rulemaking
activities by (1) initiating “form-email campaigns to demonstrate
political muscle” and (2) submitting detailed, sophisticated
comments that “will have to rise to the top of the agency’s comment
pile.” Therefore, he concluded that “we need to think hard about the
ramifications of technology here to our participatory democracy.”153
!
Another author wrote that empirical research “shows that erulemaking makes little difference: citizen input remains typically
sparse, notwithstanding the relative ease with which individuals can
now learn about and comment on regulatory proposals.154
!
Still another author concluded in 2006 that “there are good reasons
to believe that e-rulemaking initiatives’ costs outweigh their
benefits,” but also advocated “modest experimentation” to allow
additional data and evaluation. He characterized the empirical data
on e-rulemaking as “discouraging,” and said there is so much we do
not know about how the public and agencies will be affected that it
is unclear whether “it makes sense to undertake ambitious erulemaking initiatives.”155
Some authors have commented on the federal e-rulemaking system specifically. For
example, one author, writing in 2004, described the advent of Regulations.gov and
the expected availability of agencies’ rulemaking dockets, and then said the
following:
Transposing the notice-and-comment process as is on the Internet so that anyone
can post a comment reduces the costs of participation. Unifying disparate agency
procedures into a centralized “portal” removes the hurdle of learning agency
practices. Automating the comment process makes it simpler for interest groups
to participate using bots — small software “robots” — to generate instantly
thousands of responses from stored membership lists. Suddenly, anyone or
152
Stuart W. Shulman, “E-Rulemaking: Issues in Current Research and Practice,”
International Journal of Public Administration, vol. 28 (2005), pp. 621-641.
153
Ralph Lindeman, “Electronic Rulemaking Could Advantage Private Interest Groups, Top
Expert Asserts,” BNA Daily Report for Executives, December 6, 2005, p. A-30.
154
Cary Coglianese, “Citizen Participation in Rulemaking: Past, Present, and Future,” Duke
Law Journal, vol. 55 (2006), pp. 943-968.
155
Stuart M. Benjamin, “Evaluating E-Rulemaking: Public Participation and Political
Institutions,” Duke Law Journal, vol. 55 (March 2006), pp. 893-941.
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anything can participate from anywhere. And that is precisely the problem.
Without the tools and methods to coordinate participation, quality input will be
lost; malicious, irrelevant material will rise to the surface, and information will
not reach those who need it. The current plan for e-rulemaking is nothing short
of a disaster.156
A group of authors wrote in 2006 that “there is virtually no chance that the
interface being constructed at www.regulations.gov will make regulatory government
more transparent or accountable, and little chance that it will enable the public to
participate in rulemaking more effectively.157 The authors advocated that
Regulations.gov be “substantially redesigned” to allow it to achieve those goals,
including better guidance in locating the relevant agency or proceeding, and basic
educational cues about the objectives and procedure of the rulemaking process.
The description of the American Bar Association group that is examining erulemaking in the federal government evidenced a similar conclusion. Although the
panel praised the EPA working group in charge of the Administration’s initiative as
having “performed remarkably” in the face of uncertainty, criticism, and a
cumbersome management structure, it concluded that e-rulemaking’s potential to
improve public participation in, and understanding of, the rulemaking process “has
not been even modestly tapped by regulations.gov and FDMS.”158
Concluding Observations
In the first sentence of a November 2001 article in Federal Times, agency
officials were quoted as saying that “A plan to create a government-wide online rulemaking process could wind up being more costly and work-intensive than the Bush
administration envisions.”159 More than six years later, that statement seems
prophetic. A regulatory commenting system that was constructed to handle up to
16,000 comments per hour had, after more than four and one-half years of
implementation, processed an average of about three comments per hour, and about
half of those comments were submitted in the last two months of the period.160 A
government-wide electronic docket system that was originally estimated to cost $20
million to build and be completed by the end of 2004 had, by FY2008, cost more
156
Beth Noveck, “Pubic Participation in Electronic Rulemaking: Electronic Democracy or
Notice and Spam,” Administrative and Regulatory Law News (2004), p. 7. See also Beth
Simone Noveck, “The Electronic Revolution in Rulemaking,” Emory Law Journal, vol. 53
(Spring 2004), pp. 433-518.
157
Cynthia Farina, Claire Cardie, Thomas R. Bruce, and Erica Wagner, “Better Inputs for
Better Outcomes: Using the Interface to Improve e-Rulemaking,” in eRulemaking at the
Crossroads, [http://erulemaking.ucsur.pitt.edu/doc/Crossroads.pdf], pp. 13-14.
158
Available at [http://ceri.law.cornell.edu/documents/erule-committee-description.pdf].
159
Dan Davidson, “Officials Work Out Kinks in Online Rule-Making Process,” Federal
Times, November 26, 2001, p. 1126.
160
Cindy Skrzycki, “U.S. Opens Online Portal to Rulemaking; Website Invites Wider
Participation in the Regulatory Process,” Washington Post, January 23, 2003, p. E01.
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than $53 million (not including staffing contributions from EPA and elsewhere) and
is not yet fully implemented. Because estimates of cost and implementation have not
been met, e-rulemaking was on OMB’s list of IT projects with “performance
shortfalls.” Some experts predicted that the initiative would “transform” the
rulemaking process, and would “level the playing field” between the general public
and the politically well connected.161 However, as noted previously, several
academic and empirical studies suggest that e-rulemaking has not yet had, and may
never have, that effect.
Also, recent claims notwithstanding, predictions in 2003 that the e-rulemaking
system would save $94 million now seem unlikely to occur.162 This savings estimate
appears to have been based in part on questionable judgments regarding the number
of existing online docket systems, and, therefore, the cost of maintaining those
systems. Also, because paper and electronic “legacy” docket systems may need to
be maintained, agencies may not be able to “retire” their existing paper or electronic
dockets (thereby saving money as DOT did through reduced administrative costs).
OMB now says that FDMS will be more expensive for some agencies than if they
developed their own electronic docket systems, but will still cost less governmentwide than allowing agencies to develop and maintain their own systems.
Nevertheless, the e-rulemaking initiative continues to be implemented.
Agencies are more rapidly being added to FDMS, with some of the agencies
representing the bulk of federal rulemaking activity having recently been migrated
(e.g., DOT) or scheduled for migration in the near future. How e-rulemaking should
be assessed, and even whether its effects can actually be measured, are matters of
considerable controversy. For example, even if the costs of implementation are
higher than anticipated, and even if the expected financial benefits do not occur, are
the non-financial benefits of a more informed public worth those costs? Even if
relatively few public comments on rules are receive via Regulations.gov, do the high
number of “hits” and “downloads” indicate that the system is still valuable to the
public? A number of areas of inquiry remain to be explored, some with immediate
ramifications. Should the public be required to use Regulations.gov to comment on
rules (as some agencies are currently doing), or should other commenting options
remain available? How can the effects of e-rulemaking on the quality of rules and
regulatory decisions be assessed? Some have suggested that these and other issues
could be addressed by a reauthorized and funded Administrative Conference of the
United States.163
161
Ibid.
162
“Regulations.gov to Transform Rulemaking Process, Save Nearly $100M; E-Democracy
Site to Improve Quality of Rulemaking Decisions,” U.S. Newswire, January 23, 2003, p. 1.
163
See, for example, testimony of Jeffrey S. Lubbers, in U.S. Congress, House Committee
on the Judiciary, Subcommittee on Commercial and Administrative Law, The Administrative
Law, Process and Procedure Project, 109th Cong., 1st sess., Nov. 1, 2005. The
Administrative Conference was established in 1968 to provide advice regarding procedural
improvements in federal programs, and was terminated by Congress in 1995.
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Legislative-Executive Branch Conflict
The reasons why the federal e-rulemaking initiative has had such an
inauspicious first five years are many, but one reason appears to be a lack of direct,
consistent funding. Congress appropriated less than $20 million to the EGovernment Fund from FY2003 through FY2007 for all e-government projects —
much less than the $345 million authorized in the E-Government Act for that period,
and less than was requested by the President. Congressional reluctance to fund these
projects stems in part from what has been viewed as OMB’s effort to “force its
management priorities on agencies that would otherwise choose different approaches
to serving the public.”164 With regard to e-rulemaking, this appears to refer to the
decision to have a single, centralized docket system rather than a decentralized
system built on the foundations of the electronic dockets that were already operating
in certain agencies. In reaction, the Administration developed a method of funding
e-rulemaking and other initiatives through contributions from participating agencies
to the managing partners of the initiatives. Congress has, in turn, expressed concerns
that these contributions circumvent the congressional appropriations process and
violate appropriations law. Therefore, for the past several years, Congress has
instructed agencies not to transfer funds to the managing partners of these initiatives
until the House and Senate Appropriations Committees have given their approval.
Kimberly Nelson, former co-chair of the e-rulemaking initiative, was quoted as
placing much of the blame for the lack of progress on OMB’s failure to build a
sustainable infrastructure for the project. “In their haste to show success,” she
reportedly said, “they failed to establish a proper governance structure. The project
lacks an adequate system for funding, policies, reserve funding for contingencies —
and most importantly, a shared vision with Congress.”165 Similarly, one Senate
committee staff member was quoted in 2005 as saying that “there needs to be better
communication between OMB and the appropriators.”166
However, a spokesperson for the House Appropriations Committee was quoted
in the same article as saying that “OMB is intentionally going around Congress, and
we’ve said multiple times that this program doesn’t make a lot of sense, and OMB
continues to do a poor job convincing us that it does make sense.” Congressional
appropriators point out that the Constitution gives Congress the authority to fund, or
not fund, particular initiatives, and the President cannot decide to fund and operate
them without congressional approval. Therefore, the conflicts between the
Administration and Congress regarding the funding and management of e-rulemaking
164
U.S. Congress, House Committee on Appropriations, Financial Services and General
Government Appropriations Bill, 2008, report to accompany H.R. 2928, 110th Cong., 1st
sess., H.Rept. 110-207, (Washington: GPO, 2007), p. 36.
165
Ralph Lindeman, “OMB Struggles to Deal With Objections on Capitol Hill to ERegulation Project,” BNA Daily Report for Executives, January 9, 2006, p. A-6. This article
attributes the quotes to a “former manager” of the initiative. See also Ralph Lindeman, “As
Dockets Go Online, E-rulemaking Confronts Objections from Congress, Users,”BNA Daily
Report for Executives, March 30, 2007, which attributes the quotes to Ms. Nelson.
166
Jason Miller, “Why does Congress hate e-gov?,” Government Computer News, July 18,
2005.
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and other e-government projects may be part of a broader, more fundamental
difference of opinion regarding who should control the operations of government and
how the two branches of government should interact.
Another part of the problem may be what one author called a “fundamental
mismatch between the horizontal nature of government-wide e-government
initiatives, and the vertical organization of government funding and oversight
mechanisms.”167 The “stovepipes” that e-government initiatives are designed to
eliminate are, he said, mirrored in the organization of congressional committee
jurisdictions.” An October 2004 Federal Times commentary sounded a similar
theme. After noting that e-rulemaking and other projects would be delayed by
provisions in appropriations bills, the author said that Congress, like these projects:
is hostage to its own archaic organization structure. Cross-agency electronic
government projects are necessary — a relatively easy and effective way to bring
many agencies together for the common good. But lawmakers have no effective
means to manage these projects. That must change.
The current arrangement, in which each contributing agency secures the approval of
its appropriations subcommittees before contributing funds to the managing partner,
is one way to strike a balance between executive and legislative control. How long
this arrangement will continue is, at this point, unclear.
Long-Term Location of E-Rulemaking
Although the e-rulemaking initiative is frequently identified as a presidential
initiative, it also has statutory underpinnings. Section 206(c) of the E-Government
Act of 2002 requires agencies to accept rulemaking comments electronically “to the
extent practicable.” Section 206(d) of the act requires agencies, in consultation with
the OMB Director and to the extent practicable, to (1) “ensure that a publicly
accessible Federal Government Web site contains electronic dockets for
rulemakings”; and (2) make available in those dockets all submissions under the
Administrative Procedure Act, and all other materials that are usually included in
such dockets, even if not submitted electronically. Given these statutory
requirements, and assuming that Regulations.gov and the centralized docket system
that has been constructed during the past five years is unlikely to be disassembled,
even by a new presidential administration, it is reasonable to consider where the
federal government’s e-rulemaking effort should be housed long term.
One possibility is to have EPA continue in its lead agency role. After all, EPA
has gained valuable experience in developing the initiative and is certainly familiar
with both Regulations.gov and FDMS. On the other hand, reasonable questions
could be raised as to whether the development and long-term maintenance of an
electronic rulemaking system for all federal agencies is consistent with EPA’s core
mission of protecting human health and the environment.
167
Jeffrey W. Seifert, “Keeping E-Rulemaking on the Docket: Analog Challenges to Digital
Go ve r n me n t , ” i n e R u l e m a k i n g at the Crossroads , available at
[http://erulemaking.ucsur.pitt.edu/doc/Crossroads.pdf], pp. 6-8.
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Another possibility is the Office of the Federal Register (OFR) within the
National Archives and Records Administration (NARA), which (along with the
Government Printing Office) is responsible for publishing the Federal Register, the
Code of Federal Regulations, and other documents.168 As noted earlier in this report,
OFR made the Federal Register and the Code of Federal Regulations available
online in 1994, and suggested an “Addresses” template to standardize electronic
public commenting options. NARA and OFR officials have also served on the erulemaking initiative’s governing committees for years, and NARA established the
records management standards that FDMS was required to meet to be considered an
official “system of records.”
168
For more information, see [http://www.gpoaccess.gov/nara/index.html].